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AN   INQUIRY 


LAW  OF  NEGRO  SLAVERY 


UNITED  STATES  OF  AMERICA, 


TO   WHICH   IS    PREFIXED, 


n      istorical      fittcl   of 


THOMAS  R.  R.  COBB, 

OF     GEORGIA. 


"Nemo  ex  Anglorum.  gente,  modo  sanus  et  ingenue  sincerus,  qui  persuasus,  antequam 
informatus  fuerat,  in  Teritate  (<iu:>m  ipse  oculis  intueatur  SMIS)  abnuet,  ne  ab  errore  dis- 
suaderetur,  quo  obcacatus  git  abductus;  misere  enim  cum  illo  agitur  et  misericordia  di^t- 
nus,  qui  fuit  persuasus  priusquam  informatus,  et  nunc  intbrmari  abnuit,  quia  persuader! 
nolit."  —  LORD  COKE. 


VOL.  I. 


PHILADELPHIA: 

T.    &   J.   W.   JOHNSON    &    CO. 

535    CHESTNUT    STREET. 

SAVANNAH: 
W.    THORNE    WILLIAMS. 

1858. 


Entered  according  to  Act  of  Congress,  in  the  year  1858, 

BY   THOMAS   R.   R.   COBB, 
In  the  Clerk's  Office  of  the  District  Court  for  the  District  of  Georgia. 


HON.  JOSEPH  HENRY  LUMPKIN,  LL.D., 

PRESIDINO  JUDGE  OP  THE  SUPREME  COURT  OF  THE  STATE  OF  GEORGIA, 

WHO   IN   HIS   LIFE   HAS   ILLUSTRATED 
THE    PROFOUND    LAWYER,    THE    ELOQUENT    ADVOCATE, 

THE   IRREPROACHABLE   JUDGE, 

AND     THE     CHRISTIAN    PHILOSOPHER, 

WITH   SENTIMENTS   OF   PROFOUND   ADMIRATION   FOR   HIS   VIRTUES, 

GRATITUDE   FOR  HIS   KINDNESS, 
AND    SINCERE    AFFECTION    FOR    HIS    FRIENDSHIP, 


1  ktote  i\ii  Mark. 


869-132 


PREFACE. 


I  ENTER  upon  an  untrodden  field.  Stroud's 
"Sketch  of  the  Law  of  Slavery"  is  and  was  in- 
tended only  as  an  Abolition  pamphlet;  Wheeler's 
"  Law  of  Slavery"  professes  to  be  only  a  compend 
of  abridged  decisions  on  prominent  questions.  An 
elementary  treatise,  purporting  to  define  the  Law 
of  Slavery  as  it  exists  in  the  United  States,  has  not 
been  brought  to  my  notice. 

As  a  pioneer  I  doubt  not  I  have,  like  others,  fre- 
quently deviated  from  the  true  course.  Keflection 
has  induced  me  to  change  many  positions  which  I 
had  committed  to  paper.  Subsequent  reflection,  and 
the  exposition  of  other  minds,  may  induce  me  to 
change  some  now  committed  to  the  public. 

This  work  has  been  prepared  at  leisure  hours,  in 
the  midst  of  a  laborious  practice.  These  have 
varied  in  length  from  a  few  moments  to  a  few  days. 
The  natural  result — disconnection  and  incoherency 
— may  be  detected  by  experienced  eyes. 

Eesiding  in  an  interior  village,  I  have  felt  the 
want  of  access  to  extended  libraries.  I  have  taken 
advantage  of  occasional  sojourns  in  the  cities  of 


PREFACE. 


Washington,  Philadelphia,  and  New  York,  to  exa- 
mine references  previously  noted,  and  such  books  as 
related  to  my  subject.  I  have  added  also  a  number 
of  works  to  my  own  library,  which  I  could  not  other- 
wise examine.  Never  having  visited  the  extensive 
University  Library  at  Cambridge,  I  took  the  liberty 
to  apply  to  the  lamented  Greenleaf,  before  his  death, 
to  examine  and  copy  for  me  from  several  authors 
that  I  could  not  find  elsewhere.  With  a  courtesy 
and  kindness,  equalled  only  by  his  ability  and  accu- 
racy as  a  lawyer  and  a  scholar,  he  cheerfully  com- 
plied with  my  request.  The  MSS.  sent  me  are  in 
his  own  handwriting,  and  I  prize  them  as  relics  of 
a  great  and  good  man. 

From  the  causes  before  stated,  I  have  been  forced 
to  rely  on  the  accuracy  of  others  for  some  of  the 
references  made.  In  almost  every  case  I  have  no- 
ticed, at  the  time,  the  person  on  whose  authority  I 
cite. 

My  book  has  no  political,  no  sectional  purpose. 
I  doubt  not  I  am  biassed  by  my  birth  and  educa- 
tion in  a  slaveholding  State.  As  far  as  possible,  I 
have  diligently  sought  for  Truth,  and  have  written 
nothing  which  I  did  not  recognize  as  bearing  her 
image.  So  believing,  I  neither  court  nor  fear  criti- 
cism ;  remembering  that  "veritas  seapius  agitato, 
mag  is  splendescit  hicem" 

ATHENS,  GEORGIA,  August,  1858. 


CONTENTS. 


HISTORICAL  SKETCH  OF  SLAVERY. 
INTRODUCTION. 

PAGE 

Slavery  as  ancient  as  authentic  history — Slavery  in  Patri- 
archal times, xxxv 

CHAPTER    I. 

Slavery  among  the  Jews — Two  different  classes — Status  of 
the  Hebrew  servant — Of  the  Heathen  slave — Negro 
slaves — Value  of  slaves — Public  and  private  slaves — 
Manumission — Slavery  in  the  time  of  our  Saviour — 
Jewish  disregard  of  the  law  of  release,  .  .  .  xxxviii 

CHAPTER   II. 

Slavery  in  Egypt — Evidence  of  its  early  existence — Negro 
slaves — Sources  of  Egyptian  slavery — Prejudice  of  color 
— Eunuchs — Rigorous  treatment — Transition  to  castes — 
System  of  castes — Present  condition  of  laboring  classes — 
Negro  and  other  slaves  in  Egypt  at  the  present  day,  .  xliv 

CHAPTER    III. 

Slavery  in  India — Castes — Sources  of  slavery — Unlimited 
power  of  the  master  —  Manumission  —  Mohammedan 


xii  CONTENTS. 

PACE 

slavery — Rules  regulating  it — Emancipation — Effect  of 
British  rule  as  to  slavery — Negro  slaves — Slave-trade 
with  Africa  on  Eastern  coast — Treatment  of  slaves — 
Eunuchs — Abolition  of  slavery — Its  effects, ...  1 

CHAPTER   IV. 

Slavery  in  the  East — In  Assyria — Among  the  Medes  and 
Persians — Unlimited  power  of  master — Revolts — Customs 
— In  other  countries — In  China — Early  existence  in 
China — Sources  of  slavery — Hereditary  slavery — rTreat- 
ment  of  slaves — Enfranchisement — Effect  of  Grecian  and 
Roman  conquest — Of  Mussulman  rule — Negro  slaves — 
Slave-trade — Japanese  slavery — Classes  distinguished  by 
hair-pins, liv 

CHAPTER    V. 

Slavery  in  Greece — Apparent  paradox — Early  existence — 
Frequent  reference  in  its  literature — Ante-Hellenic  peiiod 
— Transferred  to  their  gods — Mercury — God  of  the  slave 
— Sources  of  slavery — Enslavement  of  debtors — Relief 
law  of  Solon — Enslavement  of  the  Heathen — Slave-steal- 
ing expeditions — The  swineherd  Eumseus — Piracy  — 
Hereditary  slavery — Effect  of  concubinage — Metics — 
In  expiation  of  crime — Agrestic  and  domestic  slaves — 
Origin  of  each — The  Helots — Their  treatment — The 
Penestae  of  Thessaly— The  Klarotse  of  Crete— Public  and 
domestic  slaves — Slave-markets — Negro  slaves — Value  of 
slaves — "  White"  slaves  not  favorites— Eunuchs — Num- 
ber of  slaves — Profitableness — Fugitives — Branding — 
Treaties  as  to  fugitives — Insurance  against  escapes — Con- 
dition of  slaves — Familiarity  with  master — Fidelity — 
Feasts  and  holidays — Affection  of  masters — Protection  of 
the  law — Places  of  refuge — Homicide — Marriage  relation 
— Appearance  in  court,  as  a  suitor,  as  a  witness  — 
Peculium — Sale — Labor  of  slaves — Laws  more  rigid  than 
customs — Punishment  of  slaves — Manumission — Effect 
thereof, lix 


HISTOEICAL    SKETCH    OF    SLAVERY.  Xlll 


CHAPTER   VI. 

Slavery  in  Rome  —  Very  partial  in  early  days  —  The  elements 
of  slavery  —  Paternal  power  —  Exposure  of  children  — 
Sale  for  debt  —  Difference  between  these  and  ordinary 
slaves  —  Children  of  debtor  —  Its  final  abrogation  —  Sale 
for  crime  —  Conquest  —  Slave-dealers  —  Piracy  —  Taxation 
—Voluntary  slavery  —  Source  of  revenue  —  Slave-marts  — 
Customs  incident  to  the  sales  —  Terms  of  sale  —  Frauds  of 
slave-traders  —  Characteristics  of  different  nations  —  Slave- 
dealing  considered  degrading  —  Negro  slaves  —  Their  early 
introduction—  Originally  all  personal  slaves  —  Public  and 
private  slaves  —  The  difference  in  their  condition  —  Treat- 
ment of  convict-slaves  —  Rustic  and  city  slaves  —  Distinc- 
tions from  occupations  —  Number  of  slaves  —  Large  num- 
ber of  domestics  —  Their  names  —  The  dotalis,  or  confi- 
dential slave  —  Preference  for  negroes  —  The  literary  slaves 

—  Gladiators  —  Insurrections  —  Prices  of  slaves  —  Legal 
status  —  Disabilities  —  Master's  power  and  rights  —  Consti- 
tution of  Antonine  —  Cruel  treatment  —  General  treatment 

—  Discussions  of  moralists  —  Union  with  master  in  feasts, 
&c.  —  Peculium  —  Their  riches  —  Places  of  refuge  —  Fugi- 
tives —  Feasts  and  holidays  —  Intimate  relation  between 
master  and  slave  —  Instances  of  cruelty  —  Punishments  of 
slaves  —  Protection  of  master's  life  —  yanumission  —  Con- 
ditionj)f  freedinen;  —  Duty  to  patron  —  Libertini,  Llberti, 

manumission  as  to  citizenship  — 


Dedititii  —  Instances  of  freedmen  acquiringHTstinction  — 
Extinction  of  slavery  in  Rome  —  Its  causes  —  Effect  of 
Christianity  —  Discussion  of  slavery  'by  Roman  moralists 
—  Later  opinions,  ......  .  kxiv 

CHAPTER    VII. 

Slavery  in  Europe  in  middle  ages  —  Universal  prevalence  — 
Difficulty  of  distinguishing  between  freemen  and  slaves  — 
Causes  and  sources  of  slavery  —  Not  the  result  of  Roman 
conquest  —  Extended  sometimes  to  entire  districts  —  Aer 
efficit  servilem  statum  —  Wales  infected  —  Names  of  slaves 


XIV  CONTENTS. 

MOB 

in  different  states— Slavery  in  Germany — Mild  in  its 
character  originally — Familiar  intercourse — Custom  of 
burning  slaves  on  funeral  pyre — More  rigorous  subse- 
quently— Fugitives — Extent  of  master's  power — Distinc- 
tion in  dress  and  ornaments — Gaming  a  source  of  slavery 
— Punishments  of  slaves — Different  from  those  of  free- 
men— Not  allowed  as  witnesses — Marriage  relation — 
Excluded  from  offices — Punishment  of  fugitives,  and 
those  aiding  them — Delivery  of  fugitives — Manumission 
— Effect  thereof — Amelioration  of  condition  of  German 
slaves — Causes  assigned — Effect  of  Crusades — Of  Chris- 
tianity— Teachings  of  fathers — Practice  of  the  Church — 
Condition  of  German  peasantry  at  the  present  day — 
Slavery  in  Gaul — Extent  of  feudal  system — Of  frequent 
conquests — Condition  of  slaves — Opinion  of  Gibbon — 
Of  Michelet — Condition  of  Rustic  serf — Treatment  by 
masters — Sales — Mainmorte — Origin  of — Slaves  of  re- 
ligious houses — Disposition  of  the  children  of  slaves — 
Right  of  prelibation — Torture — Insurrections — The  Ba- 
jaudan  conspiracy — The  Jacquerie — Names  of  slaves — 
Slave-trade — Enfranchisement  of  serfs — Continuation  of 
feudal  system — Slavery  in  Sicily — Italy  and  Venice — In 
Poland — In  Russia — Condition  of  Russian  slaves — Eman- 
cipation— Effects — Slavery  in  Turkey — Present  condition 
of  the  serfs  of  Europe — Compared  with  slavery — Opinion 
of  Michaelis, xcix 


CHAPTER    VIII. 

Slavery  in  Great  Britain — But  little  known  of  the  social 
system  of  ancient  Britons — Slavery  after  Roman  invasion 
— Effect  of  Saxon  conquest — Sources  of  slavery — Con- 
dition of  slave — Power  of  master  over  life — Sale — Ex- 
cluded from  the  Courts  as  suitor  or  witness — Branding 
and  yoking — Brazen  collars — Holidays  allowed  them — 
Working  on  Sabbath — Harboring  fugitives — Prices  of 
slaves — Slave-trade  at  Bristol — Peculium — Punishments 
of  slaves — Manumission — Effect  of  manumission — Ame- 
lioration of  slavery,  and  transition  to  villanage — Base 


HISTORICAL    SKETCH    OF    SLAVERY.  XV 

PAGE 

villanage  only  modified  slavery — Condition  of  villain — 
Transition  to  privileged  villanage — Relics  of  this  at  pre- 
sent day — Statutes  to  compel  laborers  to  work — Slavery 
in  Scotland — Colliers  and  salters — Slavery  in  Ireland — 
Their  voluntary  relinquishment  of  it — Present  condition 
of  laboring  classes  in  Britain — The  problem  of  misery,  .  cxxii 


CHAPTER    IX. 

Negro  slavery  and  slave-trade — Early  existence  of  negro 
slavery — Its  cruelties  in  their  native  land — Commence- 
ment of  slave-trade  in  A.  D.  1399 — Certainly  in  A.  D. 
1442 — Early  horrors  of  the  traffic — Success  of  early  ex- 
peditions— Missionary  pretext — Impetus  to  trade  from 
discovery  of  America — Religious  zeal  the  avowed  object 
of  each — Instructions  to  Columbus — Enslavement  of  In- 
dians— Their  sufferings  and  extinction — Recommendation 
of  Las  Casas — Negroes  introduced  in  America  in  A.  B. 
1501 — First  patent  granted  to  individuals  by  Charles  V 
— Decrease  in  Indian  population  of  Hispaniola — Demand 
for  negroes — Their  superiority  as  slaves — Cardinal  Xi- 
menes  and  the  trade — Early  revolt  of  negroes — English 
participation  in  the  trade — Introduction  of  negroes  into 
England — Sir  John  Hawkins — Partnership  with  Queen 
Elizabeth — Cruelty  toward  negroes — Chartered  compa- 
nies— Royal  African  Company — The  King  a  partner — 
Its  history — Negroes  declared  "  merchandise" — Partici- 
pation of  France — Assientoes — The  Spanish  King  and 
British  Queen  partners — Contents  of  the  Treaty — Pro- 
visions for  transportation — Sanitary  regulations — War  of 
A.  D.  1739 — Acts  of  Parliament  regulating  and  encou- 
raging the  trade — Negro  slaves  in  England — The  Portu- 
guese and  Dutch  participation  in  the  trade-" — Bounties — 
Introduction  of  negro  slaves  in  Virginia  (A.  D.  1620) — 
Introduction  of  cotton-plant  (A.  D.  1621) — Participation 
of  New  England — Rules  regulating  the  trade — Massa- 
chusetts laws — Slavery  in  Connecticut — In  Rhode  Island 
— In  New  Amsterdam — In  New  Netherlands — Bounty 
offered  in  New  Jersey — Slavery  in  Pennsylvania — In 


XVI  CONTENTS. 

Delaware  —  In  North  Carolina  —  In  South  Carolina  — 
Georgia  —  Settled  as  a  free  colony  —  History  of  introduc- 
tion of  slavery  —  Character  of  negroes  introduced  into 
America  —  Impression  as  to  the  effect  of  baptism  —  Re- 
moval of  this  idea  —  Estimated  number  imported  —  Pro- 
test of  the  Colonies  —  Conduct  of  Britain  —  Action  of 
Congress  of  1776  —  Constitutional  restriction  to  A.  D.  1808 
—  Action  of  Georgia  in  1798  —  Number  of  negroes  ex- 
ported from  Africa  —  Effect  of  the  trade  on  Africa  — 
Character  of  tribes  exported  —  "  The  horrors  of  the 
middle  passage"  —  Sanitary  provisions  of  British  Parlia- 
ment —  Predominance  of  males  among  the 


—  Profits  —  C.pndition_pf  negroes  imported  —  Their  nature 
rebellious  —  Cruel  treatment  in  West  Indies  —  Wars  of 
the  Maroons  —  Treatment  by  the  American  colonists  — 
Comparison  with~the  West  India  planters  —  Results  in  the 
increase  of  the  slave  population  in  the  Colonies  —  Intro- 
duction of  negroes  in  Spain,  England,  and  France  — 
Number  in  England  in  1775  —  Trade  on  eastern  coast  of 
Africa  —  Its  origin  and  present  state,  ....  cxxxiv 


CHAPTER    X. 

The  abolition  of  the  slave-trade  —  Protests  of  literary  men 
against  the  trade  —  Of  the  Quakers  —  Of  the  American 
Colonies  —  Opposition  of  Britain  —  Action  of  United 
States  —  The  struggle  in  Great  Britain  —  Final  abolition 
in  A.  D.  1807  —  Suggestion  as  to  real  cause  —  Action  ef 
French  government  —  Of  Spain  —  Quintuple  treaty  of  1841 
—  Treaty  with  Netherlands  and  Brazil  —  Declared  piracy 
by  United  States  and  Britain  —  Illicit  trade  —  Its  character 
and  effects  —  Its  markets,  ......  clxii 


CHAPTER   XL 

Abolition  of  slavery  in  some  of  the  United  States  —  Origi- 
nated in  America  —  War  of  Revolution  fought  on  a  prin- 
ciple —  The  Declaration  of  Independence  —  The  result  of 
the  struggle  for  political  liberty—  Feeling  of  leading  men 


HISTORICAL   SKETCH    OF    SLAVERY.  XV11 

PAGE 

— In  Virginia — Ordinance  of  1787 — Small  number  of 
slaves  in  North  and  East — Abolition  in  Vermont — Mas- 
sachusetts— New  Hampshire — Rhode  Island — Connecti- 
cut— Pennsylvania — New  York — New  Jersey — Difficulty 
of  emancipation  in  the  South — Result  of  agitation,  .  clxix 

CHAPTER    XII. 

Abolition  in  Hayti — Free  negroes— The  cry  of  the  French 
Revolution,  "Liberty  and  Equality" — Three  parties  in 
Hayti — Dissensions  among  them — Prejudice  against  mu- 
lattoes — Decree  of  8th  March,  1790 — Prejudice  of  color 
— Insurrection  of  24th  Aug.  1791 — Decree  of  15th  May, 
1791 — War  between  whites  and  mulattoes — Treaty — 
Cruel  treatment  of  the  armed  slaves — Fickle  policy  of 
National  Assembly — Results — Renewed  civil  war — De- 
cree of  4th  April,  1792 — Commissioners — Offer  to  deliver 
the  island  to  the  English — Renewal  of  hostilities — Volun- 
tary exile  of  the  whites — War  between  France  and  Spain 
— Slaves  enrolled  in  Spanish  army — Liberty  proclaimed 
to  all  slaves  who  would  join  the  army  of  the  Republic — 
Six  towns  delivered  to  the  English — Effect  of  yellow 
fever — Decree  of  4th  Feb.  1794,  abolishing  slavery — 
Agricultural  regulations — Toussaint — His  history — Ri- 
gaud — Their  dissension — Prejudice  of  mulattoes  against 
the  blacks — Commencement  of  war  between  blacks  and 
mulattoes — Triumph  of  the  blacks — Confirmation  of 
Toussaint  by  Consuls — Central  Assembly — The  Constitu- 
tion— Provisions  to  enforce  labor — Idleness  punished  with 
death — Peace  of  Amiens — Efforts  of  Napoleon  to  re- 
conquer Hayti — Mission  of  Le  Clerc — Firmness  of  Tous- 
saint—Strategy  of  Le  Clerc — Death  of  Toussaint — Civil 
war — Death  of  Le  Clerc — Rochambeau — His  fatal  policy 
— Success  of  Dessalines — Declaration  of  independence — 
Massacre  of  the  whites — Dessalines  declared  emperor — 
His  assassination — Civil  war  between  the  mulattoes  and 
blacks — Petion  and  Christophe — Their  variant  courses, 
and  the  results — President  Boyer — Revolt  of  Spanish 
colony — Conquest  by  Boyer — Independence  of  Hayti  ac- 
knowledged— The  terms, clxxiv 


XV111  CONTENTS. 


CHAPTER    XIII. 

PAGE 

Abolition  of  slavery  by  Great  Britain — Early  efforts  of 
Clarkson  and  others — Compromise  measures — Liberation 
of  "  Crown  slaves" — Insurrection  among  the  slaves — 
Gradual  Emancipation  Act  of  1833 — Apprentice  system 
— Compensation  to  masters — Failure  of  apprentice  system 
— Causes  alleged — Complete  abolition  —  Difference  be- 
tween slavery  in  West  Indies  and  in  United  States — Abo- 
lition by  Sweden  and  Denmark  —  Their  ameliorating 
system — Abolition  in  French  West  Indies — The  history 
of  the  struggle — Report  of  Due  de  Broglie — The  law  of 
18th  July,  1843— Its  provisions— The  law  of  19th  July, 
1845 — Their  failure — Alleged  causes — Subsequent  agi- 
tation— Summary  and  unjust  action  of  the  Republic  of 
1848 — Final  abolition  in  French  West  Indies,  .  clxxxviii 


CHAPTER    XIV. 

The  effects  of  abolition — Tendency  of  the  negro  to  return 
to  barbarism — Sad  effects  in  St.  Domingo — The  reasons 
assigned  by  emancipationists — The  anticipated  results 
from  a  peaceable  and  gradual  emancipation — Effects  in 
British  colonies — Investigations  by  Committees  of  Parlia- 
ment— Importation  of  Coolies  and  negro  apprentices — 
Sad  results  to  the  negro,  physically,  intellectually,  and 
morally — The  end  not  yet  seen — Guiana — Southern 
Africa  and  Mauritius — Effects  of  emancipation  in  other 
European  colonies,  .......  cxcvi 

CHAPTER    XV. 

Effects  of  abolition  in  United  States — Substantially  the  same 
to  the  negro  as  in  other  countries — Effect  on  the  State 
'different — Reasons  therefor — The  physical,  intellectual, 
and  moral  condition  of  the  freed  negroes — Their  civil  and 
political  status — Comparison  with  slaves  of  the  South,  as 
to  crime,  mortality,  and  disease, cci 


HISTORICAL    SKETCH    OF    SLAVERY.  XIX 


CHAPTER    XVI. 

Slavery  in  South  America — Colored  races  in  Brazil — No 
prejudice  of  color  there — Character  of  slaves  and  free 
negroes — Colored  races  in  New  Granada — Emancipation 
Acts — Effects  disastrous — Slaves  of  Chili  and  Peru — 
Numbers  small,  and  well  treated — In  La  Plata — Manu- 
mission during  the  Revolution, 


CHAPTER    XVII. 

Slavery  in  the  United  States — First  Abolition  Society  in 
1787 — Fanaticism — Contests  in  the  National  Assembly 
— The  present  state  of  the  question — The  peaceable  and 
quiet  conduct  of  the  slaves  in  the  United  States — No 
Maroons,  and  but  one  insurrection — Manumissions  fre- 
quent— Checks  on  domestic  manumission — Prohibitions 
of  non-slaveholding  States  to  the  ingress  of  free  negroes 
— Liberia  the  only  asylum  of  the  free  negro — Mild  treat- 
ment of  slaves — Their  rapid  increase — Their  longevity — 
Their  intellectual  improvement — Their  moral  develop- 
ment— Slavery  a  missionary  agent — Slavery  viewed  as  a 
political  institution — Its  benefits  and  evils  as  such — 
Viewed  as  a  social  relation — Its  benefits  and  evils  as  such 
— The  future  destiny  of  the  slaves  of  America, 


CHAPTER    XVIII. 

African  colonization — Sierra  Leone  an  admitted  failure — 
Inauguration  of  the  scheme  in  America — Cordial  co-ope- 
ration of  the  philanthropists  of  the  entire  Union — Liberia 
the  child  of  philanthropy  and  religion — Its  history  prior 
to  its  independence — The  material  aid  from  the  British 
and  French  Governments — From  America — Its  present 
condition — Census  of  1845 — Statistics  extracted  from  it 
and  the  reports  of  the  American  Colonization  Society — 
The  physical,  intellectual,  and  moral  condition  of  the 
Liberians — The  success  of  the  scheme  problematical — 
Doubts  expressed, ccxxii 


CONTENTS. 


LAW  OF  NEGRO  SLAVERY. 

CHAPTER    I. 

PAGE 

What  is  slavery ;  and  its  foundation  in  the  natural  law,      .  3 

CHAPTER    II. 

Negro  slavery  viewed  in  the  light  of  Divine  Revelation,     .         53 

CHAPTER    III. 
Of  the  origin  and  sources  of  slavery  in  America,       .         .         65 

CHAPTER    IV. 

Of  the  slave  as  a  person — The  rights  of  personal  security, .         82 

CHAPTER    V. 
Same  subject  continued, 97 


CHAPTER    VI. 

\_ 
Personal  liberty,  and  herein  of  fugitive  slaves, .         .         .       105 

CHAPTER    VII. 

Slaves  escaping  or  carried  into  other  States — Personal  statutes 

as  applied  to  slaves, 116 

CHAPTER    VIII. 

Same  subject  continued,  and  examined  in  the  light  of  the 

opinions  of  foreign  jurists, 138 


LAW   OF   NEGRO   SLAVERY. 


CHAPTER   IX. 

PAGE 

Same  subject  continued,  and  decisions  of  foreign  judicial 

tribunals  examined,     .......       148 


CHAPTER    X. 

Same  subject  continued  —  How  far  the  question  is  affected 

by  our  form  of  government  and  Constitution,         .         .       182 

CHAPTER    XL 

Same  subject  continued  —  Decisions  of  our  own  Courts  ex- 
amined,    .........       201 


CHAPTER    XII> 


Same  subject  continued — Fugitive  slaves,  and  of  the  right 

of  the  master  to  remove  the  slave,         .         .         .         .221 

CHAPTER    XIII. 

Of  the  privilege  of  a  slave  to  be  a  witness,       .         »        .       226 

CHAPTER    XIV. 

Of  the  right  of  private  property  as  applied  to  slaves,          .      235 

CHAPTER   XV. 

Of  contracts  by  slaves,  and  herein  of  marriage,         .         .      240 

CHAPTER    XVI. 
Of  suits  for  freedom, 247 

CHAPTER    XVII. 
Of  other  disabilities  of  slaves, 260 

B 


CONTENTS. 


CHAPTER    XVIII. 

PAGE 

Of  offences  committed  by  slaves, 263 


CHAPTER    XIX. 

Of  manumission,  and  herein  of  direct  manumission  by  deed,       278 

CHAPTER    XX. 

Of  manumission  by  will  or  executory  contract, .         .         .       296 

CHAPTER    XXL 
Of  indirect  manumission,        .         .         ......        .         .       306 

CHAPTER    XXII. 

\  Of  the  effect  of  manumission,  and  herein  of  the  status  of 

free  persons  of  color,  .         .         .        .        .       "".        .       312 


TABLE  OF  CASES. 


Abraham  v.  The  Commonwealth,  110. 
Adams  v.  Adams,  78,  302. 

v.  Barrett,  72. 
Adele  v.  Beauregard,  67. 
Aickens,  Hitchcock  v.,  191. 
Akins's  heirs,  Esther  and  others  v.,  72, 

76. 

v.  Peggy  et  al.,  72,  76. 
Alexander  v.  Stokely,  256. 
Alston  v.  Coleraan  et  al.,  238,  301. 
Allen  v.  Jim  Sharp,  252,  281,  294,  301. 

v.  Peden,  281. 

v.  The  State,  271. 

Wallingsfordv.,279. 
Alterbery,  Maria  v.,  290. 
Amedy,  United  States  v.,  189. 
America,  negro,  Collins  v. ,  216, 217,  219. 
American  Bible  Society,  Taylor  v.,  297. 
Colonization    Society,    Wade 

etal.  v.,  251,  291,  303. 
Amos,  McMichen  v.,  252. 
Amy  v.  Smith,  247. 
Anderson  v.  Garrett,  117,  295,  299. 
Antelope,  Case  of  the,  5. 
Anthony  v.  The  State,  269. 
Archer,  Dunlap  v.,  288,  304. 
Armstrong  v.  Carsons,  191. 
Arthur  v.  Wells,  92,  93,  276. 
Ashburn,  Brooks  v.,  93,  276. 
Ashton,  Mahonyv.,67, 112, 163,  174,219, 

254. 

Avart,  Maria  v.,  251. 
Aves,  Commonwealth  v.,  209. 

Bank  of  Augusta  v.  Earle,  127. 
Barbour,  Shelton  v.,  256. 


Barnett,  Wilson  v.,  295,  300,  301. 

Barrett,  Adams  v.,  72. 

Barringtons  v.  Logan's  Admrs.,  68,  72, 

78. 

Bartlett  v.  Knight,  191. 
Batty  et  al.  v.  Horton,  219. 
Baugh,  Gregory  v.,  66,  254. 
Bazzi  v.  Rose,  &c.,  287. 
Beal,  Nedetal.  v.,68,  72,76. 
Beall,  Drane  v.,  291,292. 
v.  Joseph,  242,  304. 
Beaty  v.  Judy,  253. 

Sally  v.,  241,  304. 
Beasley  v.  Beasley,  124. 
Beauregard,  Adele  v.,  67. 
Becton,  Woolen  v.,  291. 
Bell  v.  Graham,  107. 
Bemis,  Stanley  v.,  119. 
Ben,  State  v.,  231,  270. 
Benham,  Union  Bank  of  Tennessee  v., 

248,  281,  294. 

Berard  v.  Berard,  247,  253. 
Berkeley,  Harrison  v.,  276. 
Berry  v.  The  State,  230,  232. 
Birdwhistle  v.  Vardill,  125. 
Bissell  v.  Briggs,  191. 
Black  v.  Meaux,  73,  74,  297. 
Blackman  v.  Gordon,  291. 
Blackmore,  Aberilla,  Penna.  v.,  214. 

v.  Phill,  80,  294. 
Blair  v.  Worley,  91. 
Blakely,  Cooper  v.,  291. 
Bland  and  mother  v.  Dowling,  240,  304. 
Woolfork  v.  Beverly  Dowling, 

247. 
Blocker  and  wife,  Trotter,  Admr.,  v.,  238. 


XXIV 


TABLE   OF   CASES. 


Blunt,  Washington  v.,  302. 

Boarman,  Butler  v.,  66,  68. 

Bodine's  Will,  250. 

Bogard  v.  Jones,  111. 

Boggers,  Phoebe  v.,  297. 

Bollar  et  al.,  Henry  et  al.  v.,  256. 

Boon  v.  Joliet,  78. 

Booth,  Commonwealth  v.,  68,  90,  108. 

Boozer,  State  v.,  108,  109. 

Boston,  Rawlings  v.,  72. 

Bowen,  State  v.,  98. 

Bowman,  Chastain  v.,  261. 

Boyce  v.  Nancy,  299. 

State  v.,  108. 

Boycott,  Keane  v.,  242,  304. 
Boylston,  R.  B.  Ex  parte,  92,  94,  106, 

273. 

Bradford,  Henry  v.,  73,  76. 
Brandon  v.  The  Huntsville  Bank,  235, 

237. 

Briggs,  Bissell  v.,  191. 
Bromby,  Carroll  v.,  302. 
Brooks  v.  Ashburn,  93,  276. 
Broughton  v.  Telfer,  292. 
4     Brown,  Jesse,  Ex  parte,  269. 

Fable  v.,  83,  87,  88,  89,  235,  237, 

238,  242. 

Jenkins  v.,  235,  240,  241. 
v.  Lester,  231. 
Potter  and  another  v.,  126. 
Shanklinv.,241. 
v.  Shields,  257. 
State  v.,  108. 

v.  Williams,  177,  246,  304. 
Bruce  v.  Bruce,  119. 

Willis,  v.,  304. 
Bryan  v.  Dennis,  289. 

v.  Wadsworth,  295. 
Bryant,  Fanny  v.,  78. 
Bullock,  Nancy  Jackson  v.,  211. 
Burcham,  Stringer  v.,  290,  295. 
Burgwin,  Caroline  v.,  254." 

Sampson  v.,  290,  295. 
Burke  v.  Joe,  67,  295. 
Burruss,  Nicholas  v.,  297. 
Bush's  Repres.v.  White  and  wife,  216. 
Butler  v.  Boarman,  66, 68. 
v.  Craig,  66. 
v.  Hopper,  204. 
Porter  v.,  219. 


Butler  et  al.  v.  Delaplaine,  214,  298. 
Butts  v.  Penny,  157, 159. 
Byers,  Trongott  v.,  67,  110,  246. 

Cabarrus  et  al.,  Louis  v.,  218,  219,  221. 
Caesar,  State  v.,  95,  275. 
dwell,  Cline  v.,  292. 

v.  Langford,  106,  108,  109. 
Calvert  v.  Steamboat  Trinoleon,  253. 
Cameron  v.  Com.  of  Raleigh,  291. 

ampbell  v.  Street,  78. 
Carmille    v.  Admr.  of    Carmille,    241, 
242. 

aroline  v.  Burgwin,  254. 

arpenter  v.  Coleman,  251. 
Carrell  et  al.,  Wynn  et  al.  v.,  74,  77,283. 

arroll  v.  Bromby,  302. 

arsons,  Armstrong  v.,  191. 
Carter,  Sawney  v.,  289. 
Cartwright,  Minney  v.,  279,  288,  294. 
Carver,  Commonwealth  v.,  91. 
Castillion,  Cuffy  v.,  298,  304. 
Caston,  Hilton  v.,  90. 
Cateche  et  al.  v.  The  Circuit  Court,  247. 
Catin  v.  d'Orgenoy's  heirs,  72,  76. 
Cato  v.  Howard,  304. 
Cato's  Exrs.,  McGren  v.,  86. 
Cecil,  State  v.,  67. 
Chamberlain  v.  Harvey,  158. 
Chambers,  White  v.,  106. 
Chancellor  v.  Milton,  256. 
Chapman,  Fenwick  v.,251,  252,  298,  300. 
Chappie's,  Dolly,  case,  91. 
Charity,  State  v.,  271,  272. 
Charles  v.  French,  72,  77. 
Charlotte  v.  Chouteau,  298. 
Chastain  v.  Bowman,  261. 
Cheatwood,  State  v.,  92,  96. 
Chisolm,  Thornton  v.,  291. 
Chloe,  Remickv.,67,  293. 
Chouteau,  Charlotte  v.,  298. 
La  Grange  v.,  217. 
Marguerite,  v.,  66,  68. 
v.  Pierre,  258. 
Chretien,  Seville  v.,  66. 
Christy,  Petry  v.,  287,  289. 
Circuit  Court,  Cateche  et  al.  v.,  247. 
City  Council,  Kelly  v.,277. 
Clara  v.  Meagher,  289. 
Clarissa,  Harris  v.,  72,  76,  77,  253. 


LAW    OF    NEGRO    SLAVERY. 


XXV 


Clark,  in  the  matter  of,  222. 

Clarke,  Pepoon  v.,  255. 

Cleveland  et  al.  v.  Waters,  291,  298,  302. 

Clements,  Commonwealth  v.,  304. 

Cline  v.  Caldwell,  292. 

Cochrane,  Forbes  v.,  129,  161,  178. 

Cohens  v.  Virginia,  222. 

Colchester  v.  Lyme,  278. 

Coleman,  Carpenter  v.,  251. 

v.  Dick  and  Pat,  253. 
et  al.,  Alston  v.,  238,  301. 
Colin  et  al.,  Patty  v.,  299. 
Collins  v.  America,  a  woman  of  color,  216, 

217,  219. 

Collomb  v.  Taylor,  111. 
Commissioners  of  Raleigh,  Cameron  v., 

291. 

Commonwealth,  Abrahams  v.,  110. 
.  Aves,  209. 
.  Booth,  86,  90,  108. 

Carver,  91. 
.  Clements,  304. 
Cook,  214,  304. 
Foster,  108. 
.  Gilbert,  109. 
.Griffith,  110,  223. 
Holloway,  79,  214. 
Parker  v.,  109. 
of  Penn.,  Prigg  v.,  Ill, 
198,  202,  222,  223, 
224. 

v.  Robinson,  304. 
v.  Smyth,  214. 
v.  Taylor,  811. 
v.  Turner,  86,  87. 
Cook,  Commonwealth  v.,  214,  304. 

Kinney  v.,  67. 
Cooke  v.  Cooke,  297,  304. 
Cooley,  Leech  v.,  238,  302. 
Cooper  v.  Blakely,  291. 
Copeland  v.  Parker,  93,  276. 
Coquillon,  Dorothee  v.,  247. 

Lunsford  v.,117,  218. 
Cordell,  Manning  v.,  268. 
Cornish  v.  Willson,  298,  299,  300. 
Corse's  Admr.,  George  v.,  301. 
Covey,  Sylvia  and  Phillis  v.,  251. 
Cox  v.  Williams,  291. 
Cragg,  Hamilton  v.,  78. 
Craig,  Butler  v.,  66. 


Crank,  State  v.,  92. 
Crawford  v.  Moses,  76. 
Vance  v.,  291. 

Crenshaw,  Matilda  v.,  247,  248,  255. 
Cuffy  v.  Castillion,  298,  304. 
Cully  v.  Jones,  290. 
Cunningham  v.  Cunningham,  284,  292. 
Curry,  Davis  v.,  65,  67. 

Dabbs,  Fisher's  negroes  v.,  250,  290. 
Dalby,  Pirate,  alias  Belt  v.,  66. 
Dalrymple  v.  Dalrymple,  125. 
Daniel  and  others,  Williamson  and  others 

v.,  68. 

Dave  v.  The  State,  94,  95,  271,  276. 
David  v.  Porter,  219. 

Snead  v.,294. 

Talbot  v.,  290. 
Davis  v.  Curry,  65,  67. 

Macon  v.,  268. 

v.  Tingle  et  al.,  216,  217,  281. 

John,  et  al.  v.  Wood,  254,  256. 
Deacon,  Wright  v.,  222. 
Dedham's  Admr.,  Free  Lucy  and  Frank 

v.,  246,  247. 

Dejarnet's  Admr.,  Fanny  v.,  289. 
Delaplaine,  Butler  et  al.  v.,  214,  298. 
Demors,  Richard  v.,  248. 
Demoss,  Thornton  v.,  290. 
Deniger,  Moses  v.,  67. 
Dennis,  Bryan  v.,  289. 

Spencer  v.,  289,  302. 
Dick  and  Pat,  Coleman  v.,  253. 
Dillahunt,  Wm.,  State  v.,  67. 
Doe  v.  Vardill,  125. 
Donaldson  v.  Jude,  74,  289,  290. 
D'Orgenoy's  heirs,  Catin  v.,  72,  76. 
Dorothee  v.  Coquillon,  247. 
Dougherty  v.  Dougherty,  292. 
Doughty  v.  Owen,  270. 
Dowling,  Bland  and  mother  v.,  240,  304. 
Beverly,  Bland  and  Woolfork 

v.,  247. 

Drane  v.  Beall,  291,  292. 
Dumoody,  Smith  v.,  292. 
Duncan,  Gordon  v.,  255. 
Ralph  v.,  217. 
Vincent  v.,  255. 
Dunlap  v.  Archer,  288,  304. 
Duryee,  Mills  v.,  188,  192. 


XXVI 


TABLE   OF   CASES. 


Dusseau,  Victoire  v.,  242,  304. 
D willing,  Miller  v.,  72,  78. 

Earle,  Bank  of  Augusta  v.,  127. 
Earnest  &  Parker,  Witsell  v.,  93,  276. 
Edmund,  State  v.,  491. 
Elbers  and  Kraffts  v.  The  U.  S.  Insurance 

Co.,  119. 
Elder,  John,  McVaughters,  Admr.    of 

McLain  v.,  68. 
Elijah  v.  The  State,  270. 
Elliott's  John,  Exrs.,  Peter  and  others  v., 

296. 

Emeline,  Jameson  v.  68,  76. 
Emerson  v.  Rowland,  240. 
Emmons,  State  v.,  289. 
Erskine  v.  Henry  and  wife,  78. 
Esther  and  others  v.  Akins's  heirs,  72, 

76. 
Evans  v.  Kennedy,  248. 

Fable  v.  Brown,  83,  87,  88,  89,  235,  237, 

238,  242. 
Fanny  v.  Bryant,  78. 

v.  Dejarnet's  Admr.,  289. 

Griffith  v.,  218. 

Hart  v.,  78. 

Farmer,  Neal  v.,  4,  83,  87,  89,  91. 
Farra,  P.,  Ulsire  et  al.  v.,  66. 
Fen  wick  v.  Chapman,  251,  252,  298,  300. 
Ferguson  et  al.  v.  Sarah,  279,  282. 
Field  v.  Walker,  254. 
Fields  v.  The  State,  86,  90. 
Finley  v.  Hunter,  290. 
Fisher,  United  States  v.,  91. 
Fisher's  negroes  v.  Dabbs,  250,  290. 
Fit/hugh,  Kitty  v.,  72. 
Fleet,  Kettletas  v.,  288,  304. 
Fleming,  State  v.,  86. 
Flowers,  Glasgow  v.,  68. 
Forbes  v.  Cochrane,  129,  161,  178. 
Fore,  Sam  v.,  293. 
Forward  v.  Thamer,  289. 
Foster,  Commonwealth  v.,  108. 
Fox  v.  Lambson,  105,  287. 
Frank  v.  Shannon's  Esrs.,  78. 
Free  Jack  v.  Woodruff,  254. 
Free    Lucy    and   Frank   v.    Dedham's 

Admr.,  246, 247. 
Frees,  State  v.,  237. 


French,  Charles  v.,  72,  77. 
Fulcher,  Hunter  v.,  218,  219. 
Fullerton,  Lewis  v.,  218,  219,  293. 
Fulton  v.  Shaw,  73,  283. 

Garnett  v.  Sam  and  Phillis,  254. 
Garrett,  Anderson  v.,  117.  295,  299. 
Gatliffe's  Admr.  et  al.  v.  Rose  et  al.,  66, 

67,  242,  257,  304. 
Geer  v.  Huntington,  287. 
Gentin,  Phillis  v.,  256. 
Gentry  v.  McMinnis,  66,  67,  78,  254,257. 
George  v.  Corse's  Admr.,  301. 

Hartsell  v.,  72,  290. 
Gibbons  v.  Morse,  67. 
Gilbert,  Commonwealth  v.,  109. 

Rucker  v.,  297. 
Gillaspie,  Spoils  v.,  78,  79. 
Girod  v.  Lewis,  243. 
Gist  v.  Toohey,  235,  241,  242. 
Givens,  Manus  v.,  303. 

and  another  v.  Mann,  280,  289. 
Glasgow  v.  Flowers,  68. 
Glenn  v.  Hodges,  222,  246. 
Gober  v.  Gober,  67. 
Gordon,  Blackman  v.,  291. 

v.  Duncan,  255. 
Goslee,  O'Bryan  v.,77. 
Gould,  Smith  v.,  158. 
Grace,  case  of  the  slave,  88,  128,   173, 

180. 

Grady  v.  The  Stale,  274. 
Graham,  Bell  v.,  107. 

v.  Slrader,  205,  216,  219,  220, 

225. 

Graham's  Exrs.  v.  Sam,  74,  297,  299. 
Granlham's,  Sir  Thomas,  case,  162. 
Green  v.  Lane,  294. 

v.  Sarmiento,  188,  191,  193. 
Greenlow  v.  Rawlings,  290. 
Gregg  v.  Thompson,  238,  240,  242. 
Gregory  v.  Baugh,  66,  254. 
Griffith,  Commonweallh  v.,  110,  223. 

v.  Fanny,  218. 
Grigg,  Spaulding  v.,  284. 
Guillemelle  v.  Harper,  257. 
Guvierv.  O' Daniel,  119. 

Hage,  Mary,  State  v.,  273. 
Hagen,  Admr.,  Laura  Jane  v.,  289. 


LAW   OF   NEGRO   SLAVERY. 


XXV11 


Hall  v.  Mullen,  237,  240. 

State  v.,  84,  90. 

Halloway,  Commonwealth  v.,  79,  214. 
Hamilton  v.  Cragg,  78. 
Hampden  v.  McConnell,  192. 
Hancock,  Smith  v.,  92. 
Hannah,  Thrift  v.  288,  289. 
Hargrave  et  al.,  Peter  et  al.  v.,  255,  256. 
Harper,  Guillemette  v.,  257. 
Harriet  v.  Ridgely,  251,  253. 
Harris  v.  Clarissa,  72,  76,  77,  253. 

James,  State  v.,  67. 
Harrison  v.  Berkeley,  276. 
Hart  v.  Fanny,  78. 

State  v.,  261. 

Hartsell  v.  George,  72,  290. 
Harvey,  Chamberlain  v.,  158. 

Kinlockv.,94. 

Haviland,  Stoutenborough  v.,  67. 
Hensley  et  al.,  Walls  v.,  254. 
Henderson  v.  Jason,  295. 
Henry  v.  Bradford,  73,  76. 

v.  Nunn,  74,  252,  283,  296. 

and  wife,  Erskine  v.,  78. 

et  al.  v.  Bollar  et  al.,  256. 
Hepburn,  Mima  Queen  and  child  v.,  254, 

258. 

Herbert,  Miller  v.,  289. 
Hewlett,  Parks  v.,  281,294. 
Higbee,  Jarrett  v.,  109,  110. 
Hill  v.  Low,  222. 
Marr  v.,  231. 
State  v.,  105,  295. 
Hilton  v.  Caston,  90. 
Hitchcock  v.  Aicken,  191. 
Hobson  v.  Perry,  242. 
Hodges,  Glen  v.,  222,  246. 
Holmes,  Middleton  v.,  86. 
Holt,  Macon  and  W.  R.  R.  Co.  v.,  67. 
Hooe,  Mahomer  v.,  293,  296. 
Hook  v.  Nancy  Pagee,  66,  254. 
Hopper,  Butler  v.,  204. 
Horton,  Batty  et  al.  v.,  219. 
Howard,  Cato  v.,  304. 
Rowland,  Emerson  v.,  240. 
Hudgens  v.  Spencer,  77. 
Hudgins  v.  Wright,  65,  66,  68,  252,  253, 

254,  257. 
Hunter,  Finley  v.,  290. 

v.  Fulcher,  218,  219. 


Hunter,  McCIintock  v.,  231. 

v.  Shaffer,  105. 

Hunter's  Lessee,  Martin  v.,  197,  222. 
Huntington,  Geer  v.,  287. 
Huntsville  Bank,  Brandon  v.,  235,  237. 

Inhabitants  of  Thames  Ditton,  The  King 

v.,  133,  169,  175. 
Isaac  et  al.  v.  McGill,  251,  302. 

v.  West,  77,  288,  294. 
Isabel,  Pegram  v.,  254,  256. 

Jack  v.  Martin,  222,  223. 

Jackson  ex  dem.  &c.  v.  Lervey,  83,  235, 

238,  240,  243,  245. 
James  v.  Jones,  256. 

v.  Le  Roy  et  al.,  110. 
Jameson  v.  Emeline,  68,  76. 
Jarrett  v.  Higbee,  109,  110. 
Jarrott,  State  v.,  95,  273,  275. 
Jason,  Henderson  v.,  295. 
Jenkins  v.  Brown,  235,  240,  241. 
Joe,  Burke  v.,  67,  295. 
John  v.  Moreman,  302. 
v.  The  State,  95. 
etal.  v.  Tateetal.,291. 
et  al.  v.  Walker,  252. 
Johnson,  Linam  v.,  105. 

v.    Tompkins,    110,    111,  204, 

222,  253. 
Johnson's  Admrs.  v.  Johnson's  heirs,  73, 

77. 

Joliet,  Boon  v.,  78. 
Jones,  Bogard  v.,  111. 
Cully  v.,  290. 
James  v.,  256. 
State  v.,5,  86. 
v.  Vanzandt,  204,  205,  222. 
Winn,  Admr.  &c.,  v.,  230. 
Ben  v.  Wootten,  72. 
Jordan  v.  Smith,  230. 
Joseph,  Beallv.,  242,  304. 
Josephine  v.  Pouhney,  218. 
Judges,  reports  of,  91. 
Judy,  Beaty  v.,  253. 

Donaldson  v.,  74,  289,  290. 
Mechum  v.,  231. 
Julia  v.  McKinney,  217. 
Julienv.Langlish,  288. 


xxvm 


TABLE   OF   CASES. 


Keane  v.  Boycott,  242,  304. 

Kegler  v.  Miles,  67. 

Kelly  v.  The  City  Council,  277. 

Kelly  &  Little  v.  The  State,  86,  94,  98. 

Kelso's  Admr.,  Ben  Mercer  et  al.  v.,  250. 

Kennedy,  Evans  v.,  248. 

Kerr,  State  v.,  111. 

Kettletasv.  Fleet,  288,  304. 

King,  The,  v.  Inhabitants  of  Thames 

Ditton,  133,  169, 175. 
Robinson  v.,  292,  298. 
Kingston,  Town  of,  Town  of  Marbletown 

v.,68. 

Kinlock  v.  Harvey,  94. 
Kinney  v.  Cook,  67. 
Kitty  v.  Fitzhugh,  72. 
Knight,  Bartlett  v.,  191. 
Knox,  Tumey  v.,  231. 

La  Grange  v.  Chouteau,  217. 

Laird,  Stuart  v.,  222. 

La  Jeune  Eugenie,  United  States  v.,  154, 

202. 

Lambson,  Fox  v.,  105,  287. 
Lane,  Green  v.,  294. 
Wells  v.,  295. 

Langford,  Caldwell  v.,  106,  108,  109. 
Langlish,  Julien  v.,  288. 
Lanham  v.  Meacham,  298,  301. 
Laura,  Jane,  v.  Hagen,  Admr.,  289. 
Lee  v.  Lee,  252. 
Leech  v.  Cooley,  238,  302. 
Lenoir  v.  Sylvester,  235. 
Leroy  et  al.,  James  v.,  110. 

Lervey,  Jackson,  ex  dem.  &c.  v.,  83 
235,  238,  240,  243,  245. 

Lester,  Brown  v.,  231. 

Lewis  v.  Fullerton,  218,  219,  293. 
Girod  v.,  243. 
v.  Simonton,  74,287,289,  290. 

Linam  v.  Johnson,  105. 

Logan's  Admrs.,  Barrington  v.,  68,  72 
78. 

Louis  v.  Cabarrus  et  al.,  218,  219,  221. 

Low,  Hill  v.,  222. 

Lowe,  Wright  v.,  292. 

Lunsford  v.  Coquillon,  117,  218. 

Lydia,  Rankin  v.,  216,  252. 

Lyme,  Colchester.v.,  278. 

Macon  v.  Davis,  268. 

v.  The  State,  261. 


Macon  and  W.  R.  R.  Co.  v.  Holt,  67. 
Madrazzo  v.  Willes,  179. 
Jahomer  v.  Hooe,  293,  2%. 
Mahony  v.  Ashton,  67, 112, 163,  174,  219. 

254. 

Maner,  State  v.,  90,96. 
Mann,  Givens  and  another  v.,  280, 289. 

State  v.,  83,  90. 
Vlanning  v.  Cordell,  268. 
Manus  v.  Givens,  303. 
Vlarbletown,    Town   of,    v.    Town    of 

Kingston,  68. 
Marguerite  v.  Chouteau,  66,  68. 
Maria  v.  Alterbery,  290. 
v.  Avart,  251. 
Sibley  v.,  291. 

et  al.  v.  Surbaugh,  72,  73,  74,  76. 
Marrv.  Hill,  231. 
Marshall,  McCutchen  v.,  68,  72,  74,  75, 

77, 279. 
Martin  v.  Hunter's  Lessee,  197,  222. 

Jack  v.,  222,  223. 
Mary  v.  Morris,  253. 

v.  The  Vestry,  &c.,65. 
Matilda  v.  Crenshaw,  247,  248,  255. 
Maverick  v.  Stokes,  289. 
Mayho  v.  Sears,  72,  75,  77,  283. 
McClintockv.  Hunter,  231. 
McConnell,  Hampden  v.,  192. 
McCoy,  Pinckard  v.,  291. 
McCutchen  v.  Marshall,  68,72,  74, 75,  77, 

279. 

McDonald,  State  v.,  296. 
McGill,  Isaac  v.,  251,  302. 
McGren  v.  Cato's  Exrs.,  86. 
McKinney,  Julia  v.,  217. 
McMichen  v.  Amos,  252. 
McMinnis,  Gentry  v.,  66,  67,  68,  254, 

257. 
McVaughters,  Admr.  of  McLain,v.  John 

Elder,  68. 

Meacham,  Lanham  v.,  298,  301. 
Meagher,  Clarav.,  289. 
Meaux,  Black  v.,  73,  74,  297. 
Meechum  v.  Judy,  231. 
Melugen,  Robert  v.,  218,  289. 
Meloin,  Wilson  v.,  218. 
Mercer,  Ben  et  al.,  v.  Kelso's  Admr., 

250. 

Mickel,  Nan,  in  the  matter  of,  287,  289, 
297. 


LAW   OF   NEGRO   SLAVERY. 


XXIX 


Middleton  v.  Holmes,  86. 
Miles,  Kegler  v.,  67. 
Miller  v.  Dwilling,  72,  78. 

v.  Herbert,  289. 

v.  Reigne,  295. 
Mills  v.  Duryee,  188,  192. 
Milleyv.  Smith,  217. 
Milton,  Chancellor  v.,  256. 
Mima  Queen  and  child  v.  Hepburn,  254 

258. 

Mingo  et  al.,  Paul's  Admr.  v.,  256. 
Minney  v.  Cartwright,  279,  288,  294. 
Monica  v.  Mitchell,  298. 
Moreman,  John  v.,  302. 
Morse,  Gibbons  v.,  67. 
Moses,  Crawford  v.,  76. 

v.  Deniger,  291. 
Muller,  State  v.,  67. 
Mullin,  Hall  v.,  237,  240. 
Mulling  v.  Wall,  296. 
Munro  v.  Munro,  120. 
Myrick,  Pierce  v.,  92,  271. 

Nancy,  Boyce  v.,  299. 

v.  Snell,  293,  297,  298,  299,  300, 
301. 

v.  Wright,  302. 

Jackson  v.  Bullock,  211. 
Nat  v.  Ruddle,  217. 
Neal  v.  Farmer,  4,  83,  87,  89,  91. 
Neale,  Queen  v.,  255. 
Ned  et  al.  v.  Beal,  68,  72,  76. 
Newlin,  Thompson  v.,  291. 
Nicholas  v.  Burruss,  297. 
Noelv.  Robinson,  160. 
Nunn,  Henry  v.,  74,  252,  283,  296. 

Oatfield  v.  Waring,  280. 
O' Bryan  v.  Goslee,  77. 
O'Daniel,  Guvier  v.,  119. 
O'Neal,  Tate  v.,  107,  108. 
Opinion  of  Daniel  Dulany,  238,  243. 
Owen,  Doughty  v.,  270. 

Pagee,  Nancy,  Hook  v.,  66,  254. 
Parker  v.  The  Commonwealth,  109. 

Copeland  v.,  93,  276. 
Parks  v.  Hewlett,  281,294. 
Parish,  Reuben  v.,  289,293. 
Patty  v.  Colin  et  al.,  299. 


Paul's  Admr.  v.  Mingo  et  al.,  256. 

Peden,  Allen  v.,  281. 

Peggy,  Redford  v.,  303. 

et  al.,  Akin's  heirs  v.,  72,  76. 

Pegram  v.  Isabel,  254,  256. 

Pemberton  &  Smith,  State  v.,  264. 

Penna  v.  Aberilla  Blackmore,  214. 

Penny,  Butts  v.,  157,  159. 

Pepoon  v.  Clarke,  255. 

Perry,  Hobson  v.,  242. 

Peter  and  others  v.  John  Elliott's  Exrs., 

296. 

State  v.,  269. 
et  al.  v.  Hargrave  et  al.,  255,  256. 

Peters  v.  Van  Lear,  247,  248,  251,  253, 
299. 

Petry  v.  Christy,  287,  289. 

Phebe,  Vaughn  v.,  253,  254,  256. 

Phill,  Blackmore  v.,  80,  294. 

Phillis  v.  Gentin,  256. 

Phoebe  v.  Boggers,  297. 

Pierce  v.  Myrick,  92,  271. 

Pierre,  Chouteau  v.,  258. 

Pile,  Thomas  v.,  254. 

Pinckard  v.  McCoy,  291. 

Pirate,  alias  Belt,  v.  Dalby,  66. 

Pitney,  State  v.,  289. 

Piver,  State  v.,  90,  95. 

Pleasants  v.  Pleasants,  74,  76,  248,  252, 
256. 

Polydore  v.  Prince,  248. 

Porter  v.  Butler,  219. 
David  v.,219. 

Posey,  State  v.,  263,  265,  269. 

Potter  and  another  v.  Brown,  126. 

Poultney,  Josephine  v.,  218. 

Prall's  Admr.,  State  v.,  287,  304. 

Preston,  Worthington  v.,  222. 

Prigg  v.  The  Commonwealth  of  Penn- 
sylvania, 111,  198,  202,  222,  223, 
224. 

Prince,  Polydore  v.,  248. 

Queen  v.  Neale,  255. 

Mima  and  child  v.  Hepburn,  254, 
258. 

Rachel  v.  Walker,  218. 
ilaines,  State  v.,  90,  96. 
Ralph  v.  Duncan,  217. 


XXX 


TABLE    OF   CASES. 


Rankin  v.  Lydia,  216,  252. 
Rawlings  v.  Boston,  72. 

Greenlowv.,  290. 
Redford  v.  Peggy,  303. 
Reed,  State  v.,  86. 
Reigne,  Miller  v.,  295. 
Remick  v.  Chloe,  67,  293. 
Reports  of  Judges,  91. 
Respublica  v.  Lambert  Smith,  214. 
Reuben  v.  Parish,  289,  293. 
Rice  v.  Spear,  300. 
Richard  v.  Demors,  248. 
Richardson,  Stiles  v.,  304. 
Ridgely,  Harriet  v.,  251,  253. 
Roberson  v.  Roberson,  301. 
Robert  v.  Melugen,218,  289. 
Roberts  v.  Smiley,  257. 
Robinson,  Commonwealth  v.,  304. 

v.  King,  292, 298. 

Noel  v.,  160. 
Rose,  &c.,  Bazzi  v.,  287. 

\      et  al.,  Gatliffe's  Admr.  et  al.  v., 

66,  67,  242,  257,  304. 
Ross  et  al.  v.  Vertner  et  al.,  238. 
Rucker  v.  Gilbert,  297. 
Ruddle,  Nat  v.,  217. 
Rusk  v.  Sowerwine,  230. 

Sally  v.  Beatty,  241,304. 
Sam  v.  Fore,  293. 

Graham's  Exrs.  v.,  74,  297,  299. 

and  Phillis,  Garnett  v.,  254. 
Sampson  v.  Burgwin,  290,  295. 
Samuel,  a  slave,  The  State  v.,  230,  231, 

243,  245. 
Sanford,  Dred  Scott,  v.,  120,  121,  205, 

206,  207,  209. 

Sarah,  Ferguson  et  al.  v.,  279,  282. 
Sarmiento,  Green  v.,  188,  191,  193. 
Saul  v.  His  creditors,  126,  127. 
Sawney  v.  Carter,  289. 
_Scott,  Dred,  Sanford  v.,120, 121, 205, 206, 
207,  209. 

v.  Waugh,  68,  77. 

v.  Williams,  67,  256. 
Sears,  Mayho  v.,  72;  75,  77,  283. 
Seville  v.  Chretien,  66. 
Shaffer,  Hunter  v.,  105. 
Shanklinv.  Brown,  241. 
Shannon's  Exrs.,  Frank  v.,  78. 


Sharp,  Jim,  Allen  v.,  252,  281,  294,  301. 

Shaw,  Fulton  v.,  73,  283. 

Shelton  v.  Barbour,  256. 

Shields,  Brown  v.,  257. 

Sibley  v.  Maria,  291. 

Sidney  v.  White,  72,  73,  79,  80,  293. 

Simes,  State  v.,  232. 

Simmons,  Ex  parte,  222. 

Simonton,  Lewis  v.,  74,  287,  289,  290. 

Singlebury,  State  v.,  292. 

Smiley,  Roberts  v.,  257. 

Smith,  Amy  v.,  247. 

v.  Dumoody,  292. 
v.  Gould,  158. 
v.  Hancock,  92. 
Jordan  v.,  230. 
Milly  v.,  217. 

Lambert,  Respublica  v.,  214. 
Smyth,  Commonwealth  v.,  214. 
Snead  v.  David,  294. 
Snell,  Nancy  v.,  293,  297,  298,  299,  300, 

301. 

Somersett  Case,  116,  132,  133,  134,  140, 
150,  151,  153,  161,  162,  163,  163, 
170. 

Sommerville  v.  Sommerville,  120. 
Sowerwine,  Rusk  v.,  230. 
Spalding  v.  Grigg,  284. 
Spear,  Rice  v.,  300. 
Spencer  v.  Dennis,  289,  302. 

Hudgens  v.,  77. 
Spotts  v.  Gillaspie,  78,  79. 
Stanley  v.  Bemis,  119. 
State,  Allen  v.,  271. 

Anthony  v.,  269. 

v.  Ben,  231,  270. 

Berry  v.,  230,  232. 

v.  Boozer,  108,  109. 

v.  Bowen,  98. 

v.  Boyce,  108. 

v.  Brown,  108. 

v.  Cassar,  95,  275. 

v.  Cecil,  67. 

v.  Charity,  271,272. 

v.  Cheatwood,  92,  96. 

v.  Crank,  92. 

Dave  v.,  94,  95,  271,  276. 

v.  Dillahunt,  Win.,  67. 

v.  Edmund,  4,  91. 

Elijah  v.,  270. 


LAW    OF   NEGRO    SLAVERY. 


State  v.  Emmons,  289. 

fields  v.,  86,  90. 

v.  Fleming,  89. 

v.  Frees,  287. 

Grady  v.,  274. 

v.  Hage,  Mary,  273. 

v.  Hall,  84,  90. 

v.  Harris,  Jas.,  67. 

v.  Hart,  261. 

v.  Hill,  105,  295. 

v.  Jarrott,  95,  273,  275. 

John  v.,95. 

v.Jones,  5,  86. 

Kelly  &  Little  v.,  86,  94,  98. 

v.  Kerr,  111. 

Macon  v.,  261. 

v.  Maner,  90,  96. 

v.  Mann,  83,  90. 

v.  McDonald,  296. 

v.  Muller,  67. 

v.  Pemberton  &  Smith,  264. 

v.  Peter,  269. 

v.  Pitney,  289. 

v.  Piver,  90,  95. 

v.  Posey,  263,  265,  269. 

v.  Prall's  Admrs.,  287,  304. 

v.  Raines,  90,  96. 

v.  Reed,  86. 

v.  Samuel,  a  slave,  230,  231,  243, 
245. 

v.  Simes,  232. 

v.  Singlebury,  292. 

v.  Tackett,  86,  92. 

v.  Thackam  &  Magson,  264. 

v.  Van  Waggoner,  66. 

Wash  v.,  9 1,269. 

v.  Weaks,  108. 

Whaley  v.,  232. 

v.  \Vliyte  and  Sadler,  92. 

v.  Will,  93,  94,  95,  274,  276. 

William  v.,  95. 

v.  Wilson,  99. 

Worley  v.,86,  276. 
Stewart  v.  Williams,  297. 
Stephen,  Wood  v.,  257. 
Stephens,  Violet  and  another  v.,  253. 
Stiles  v.  Richardson,  304. 
Stokely,  Alexander  v.,  256. 
Stokes,  Maverick  v.,  289. 
Stoutenborough  v.  Haviland,  67. 


Strader,  Graham  v.,  205,  216,  219,  220, 

235. 

Street,  Campbell  v.,  78. 
Stringer  v.  Burcham,  290,  295. 
Stuart  v.  Laird,  222. 
Surbaugh,  Maria  et  al.  v.,  72,  73,  74,  76. 
Susan  v.  Wells,  247. 
Sweeper,  Woolfork  v.,  256. 
Sylvester,  Lenoir  v.,  235. 
Young  v.,  235. 
Sylvia  and  Phillis  v.  Covey,  251. 

Tackett,  State  v.,  86,  92. 
Talbot  v.  David,  290. 
Tate  v.  O'Neal,  107,  108. 
Tate  et  al.,  John  et  al.  v.,  291. 
Taylor  v.  American  Bible  Society,  297. 
Collomb  v.,  111. 
Commonwealth  v.,  211. 
Telfer,  Broughton  v.,  292. 
Thackam  and  Magson,  State  v.,  264. 
Thamer,  Forward  v.,  289. 
The  People,  Willard  v.,  126,  184,  198, 

214. 

Vestry,  &c.,  Mary  v.,  65. 
Thomas  v.  Pile,  254. 

v.  Wood,  294,  299,  301. 
Thompson,  Gregg  v.,  238,  240,  242. 
v.  Newlin,  291. 
v.  Thompson,  280. 
v.    Wilmot,    216,    242,   256, 

304. 
Thornton  v.  Chisolm,  291. 

v.  Demoss,  67. 
Thrift  v.  Hannah,  288,  289. 
Tingle  et  al.,  Davis  v.,  216,  217,  281. 
Tom,  case  of,  288. 
Tompkins,  Johnson  v.,  110,  111,  204,  222, 

253. 

Toohey,  Gist  v.,  235,  241,  242. 
Trinoleon,  Steamboat,  Calvert  v.,  253. 
Trongott  v.  Byers,  67,  110,  246. 
Trotter,  Admr.,  v.   Blocker  and  wife, 

238. 

Tumey  v.  Knox,  231. 
Turner,  Commonwealth  v.,  86,  87. 

Ulsire  et  al.  v.  P.  Farra,  66. 
Union  Bank  of  Tennessee  v.  Benham, 
248,  281,  294. 


XXXll 


TABLE   OF   CASES. 


United  States  v.  Amedy,  189. 
v.  Fisher,  91. 
v.  La  Jeune  Eugenie,  154. 
Insurance  Co.,  Elbers  & 
Krafftsv.,  119. 

Vance  v.  Crawford,  291. 

Van  Lear,  Peters  v.,  247,  248,  251,  253, 

299. 

Van  Waggoner,  State  v.,  66. 
Vanzandt,  Jones  v.,  204,  205,  222. 
Vardill,  Birdwhistle  v.,  125. 

Doe  v.,  125. 

Vaughan  v.  Williams,  204. 
Vaughn  v.  Phebe,  253,  254,  256. 
Victoire  v.  Dusseau,  242,304. 
Vincent  v.  Duncan,  255. 
Violet  and  another  v.  Stephens,  253. 
Virginia,  Cohens  v.,  222. 

Wade   et  al.  v.  American  Colonization 

Society ,251,  291,  303. 
Wadsworth,  Bryan  v.,  295. 
Walker,  Field  v.,  254. 

John  et  al.  v.,  252. 
Rachel  v.,  218. 
Wall,  Mullins  v.,  296. 
Wallingsford  v.  Allen,  279. 
Walls  v.  Hemsley  et  al.,  254. 
Waring,  Oatfield  v.,  280. 
Washv.  The  State,  91,269. 
Washington  v.  Blunt,  302. 
Waters,  Cleveland  et   al.  v.,  291,  298, 

302. 

Waugh,  Scott  v.,  68,  77. 
Weaks,  State  v.,  108. 
Weathersby  v.  Weathersby,  292. 
Welch's  Heirs  v.  Welch's  Admrs.,  296. 
Wells,  Arthur  v.,  92,  93,  276. 
v.  Lane,  295. 
Susan  v.,  247. 

West,  Isaac  v.,  77,  288,  294. 
Whaley  v.  The  State,  232. 
White  v.  Chambers,  106. 

Sidney  v.,  72,  73,  79,80,  293. 


White  v.  White,  292. 

and  wife,  Bush's  Repres.  v.,216. 
Whitesides  alias  Prewitt,  Winny  v.,  217. 
Whyte  and  Sadler,  State  v.,  92. 
Will,  Bodine's,  250. 

State  v.,  93,  94,  95,  274,  276. 
Willard  v.  The  People,  126,  184,  198, 

214. 

Willes,  Madrazzov.,  179. 
William  v.  The  State,  95. 
Williams  v.  Brown,  177,  246,  304. 

Cox  v.,  291. 

Williams,  Scott  v.,  67,256. 
Stewart  v.,  297. 
Vaughan  v.,  204. 
Williamson   and   others  v.  Daniel  and 

others,  68. 
Willis  v.  Bruce,  304. 
Willson,  Cornish  v.,  298,  299,  300. 
Wilmot,  Thompson  v.,  216,    242,  256, 

304. 

Wilson  v.  Barnett,  295,  300,  301. 
Melvinv.,  218. 
State  v.,  99. 

Winn,  Admr.,  &c.,  v.  Jones,  230. 
Winny  v.  Whitesides  alias  Prewitt,  217. 
Witsell  v.  Earnest  and  Parker,  93,  276. 
Wood,  John  Davis  et  al.  v.,  254,  256. 
v.  Stephen,  257. 
Thomas  v.,294,  299,  301. 
Woodruff,  Free  Jack  v.,  254. 
Woolfork  v.  Sweeper,  256. 
Woolen  v.  Becton,  291. 
Wootten,  Ben  Jones  v.,  72. 
Worley,  Blair  v.,  91. 

v.  The  State,  86,  276. 
Worthington  v.  Preston,  222. 
Wright  v.  Deacon,  222. 

Hudgins  v.,  65,  66,  68,  252,  253, 

254,  257. 
v.  Lowe,  292. 
Nancy  v.,  302. 
Wynn  et  al.  T.  Carroll  et  al.,  74,  77,  283. 

Young  v.  Sylvester,  235. 


AN 


HISTORICAL  SKETCH  OF  SLAVERY, 


EARLIEST  PERIODS  TO  THE  PRESENT  DAY. 


HISTORICAL  SKETCH  OF  SLAVERY. 


INTRODUCTION. 

PHILOSOPHY  is  the  handmaid,  and  frequently  the  most 
successful  expounder  of  the  law.  History  is  the  ground- 
work and  only  sure  basis  of  philosophy.  To  understand 
aright,  therefore,  the  Law  of  Slavery,  we  must  not  be 
ignorant  of  its  history. 

A  detailed  and  minute  inquiry  into  the  history  of 
slavery  would  force  us  to  trace  the  history  of  every  na- 
tion of  the  earth ;  for  the  most  enlightened  have,  at 
some  period  within  their  existence,  adopted  it  as  a  sys- 
tem ;  and  no  organized  government  has  been  so  barbar- 
ous as  not  to  introduce  it  amongst  its  customs.  It  has 
been  more  universal  than  marriage,  and  more  permanent 
than  liberty.1  All  that  we  can  propose  for  ourselves 
here,  is  a  limited  and  brief  glance  at  its  existence  and 
condition  during  the  several  ages  of  the  world. 

Its  beginning  dates  back  at  least  to  the  deluge.  One 
of  the  inmates  of  the  ark  became  a  "  servant  of  ser- 
vants ;"  and  in  the  opinion  of  many  the  curse  of  Ham 

1  See  Bancroft's  United  States,  vol.  i,  ch.  v.  "  Liberty  and  Tyranny 
have  kept  pace  with  each  other.  The  helots  at  Sparta,  the  slaves  at 
Rome,  the  villains  of  the  feudal  system,  bear  testimony  to  this  melan- 
choly truth."  Brown's  Civil  Law,  i,  97. 


XXXvi  HISTORICAL   SKETCH    OF   SLAVERY. 

is  now  being  executed  upon  his  descendants,  in  the  en- 
slavement of  the  negro  race.  From  the  familiarity  with 
which  Noah  spoke  of  the  servile  condition  of  his  young- 
est son,  it  seems  probable  that  the  condition  of  servitude 
must  have  existed  prior  to  the  flood. 

In  every  organized  community  there  must  be  a  labor- 
ing class,  to  execute  the  plans  devised  by  wiser  heads  : 
to  till  the  ground,  and  to  perform  the  menial  offices 
necessarily  connected  with  social  life.  This  class  have 
generally  been  slaves,  and,  in  the  opinion  of  Puffendorf, 
their  bondage  naturally  arose,  in  the  infancy  of  society, 
from  their  occupation.  The  poorer  and  less  intelligent 
applied  to  the  more  opulent  and  intelligent  for  employ- 
ment. The  return  was  food  and  raiment,  at  a  time 
when  there  was  no  currency.  With  the  removal  of  the 
employer — mankind  at  that  age  having  no  permanent 
abode — the  employee  moved  also,  and  with  him  his 
family.  His  children,  as  they  grew  to  youth  and  man- 
hood, naturally  aided  the  parent  in  his  labors,  and  re- 
ceived the  same  reward;  and  thus,  either  by  express 
contract  or  custom,  the  one,  with  his  descendants,  be- 
came attached  to  and  a  part  of  the  household  of  the 
other.  Certain  it  is,  that  Abraham  had  his  man-servants 
and  maid-servants,  born  in  his  house  and  bought  with 
his  money ;  and  that  Sarah,  his  wife,  was  a  hard  mis- 
tress to  Hagar,  her  handmaid,  who  became  a  fugitive 
from  her  hand,  and  returned  only  by  the  direction  of  the 
angel  of  the  Lord.  The  slave-trade  too,  was  of  early 
origin,  as  we  find  Joseph  sold  to  Midianitish  merchants, 
and  resold  by  them  in  Egypt.  The  transfer  of  slaves 
from  parent  to  child,  was  of  still  earlier  origin,  as  we 
find  Rebecca,  on  her  marriage  to  Isaac,  carrying  her 
damsels  home  with  her ;  a  custom  followed  by  Laban, 
on  the  marriage  of  Leah  and  Rachel  to  Jacob.  The 
slavery  in  these  patriarchal  days,  was  undoubtedly  mild ; 
and  the  relations  between  the  master  and  slave,  of  the 


INTRODUCTION.  XXXV11 

most  familiar  character.  Job  protested  before  God,  that 
he  despised  not  the  complaint  of  his  man-servant  or  his 
maid-servant,  when  they  contended  against  him ;  and 
gave,  as  his  reason,  that  both  master  and  slave  were 
fashioned  by  the  same  hand.1  The  servant  frequently 
had  control  of  all  his  master's  goods  ;3  and  in  default  of 
children,  became  his  nominated  heir.3 

'  Job  31  :  13,  15.  2  Gen.  24  :  10. 

8  Gen.  15:3;  Prov.  17  :  2.  Our  Saviour  alludes  to  this  in  the  parable 
of  the  wicked  servants  who  slew  the  son — the  only  heir — that  the  inherit- 
ance might  be  theirs. 


CHAPTER  I. 

SLAVERY  AMONG  THE  JEWS. 

THERE  were,  among  the  Jews,  two  distinct  classes  of 
slaves,  distinguished  by  great  difference  of  treatment 
and  status,  as  well  as  by  the  duration  of  their  bondage. 
The  one  class  consisted  of  their  Hebrew  brethren  ;  the 
other  of  strangers  and  heathen.  The  bondage  of  the 
first  expired  on  the  seventh  year;  unless  the  servant 
"  shall  plainly  say,  'I  love  my  master,  my  wife,  and  my 
children.  I  will  not  go  out  free.'  Then  his  master 
shall  bring  him  unto  the  judges ;  he  shall  also  bring 
him  unto  the  door  or  doorpost ;  and  his  master  shall 
bore  his  ear  through  with  an  awl,  and  he  shall  serve  him 
forever."1  Thus  the  Hebrew  servant  became  one  of  the 
other  class,  whose  bondage  was  perpetual.8  On  the 
seventh  year,  the  Hebrew  servant,  when  he  went  free, 
took  with  him  his  wife,  if  she  came  with  him.  But  if 
his  master  had  given  him  a  wife,  she  and  her  children 

1  Exodus  21  :  5,  6  ;  Deut.  15  :  16. 

2  I  am  aware  that  abolitionists,  including  learned  prelates  in  the  Bri- 
tish House  of  Lords,  have  explained  the  word  "  forever"  to  mean  only 
until  the  year  of  Jubilee.    I  am  not  a  sufficient  Hebrew  scholar  to  enter 
into  this  controversy  or  to  pretend  to  decide  the  question.     I  would  re- 
mark that  the  same  argument  is  resorted  to,  by  those  contending  for  uni- 
versal salvation,  to  meet  and  refute  the  orthodox  doctrine  of  eternal 
punishment.   The  curious  on  this  point  are  referred  to  Fletcher's  Studies 
on  Slavery;  Priest's  Bible  Defence  of  Slavery,  136  ;  Gill's  Commentary ; 
Lev.  25  :  44;  Michaelis's  Comm.  on  Mosaic  Law,  vol.  ii,  art.  127.     This 
learned  author  supposes  that  even  the  Hebrew  servant  in  some  cases 
served  till  the  year  of  Jubilee. 


SLAVEEY   AMONG   THE   JEWS.  XXXIX 

belonged  to  the  master,  and  remained  with  him,  while 
the  man-servant  went  out  by  himself.1  He  was  not  sent 
forth  penniless,  but  was  furnished  "  liberally  out  of  the 
flock,  and  out  of  the  floor,  and  out  of  the  wine-press."2 
This  limitation  upon  the  servitude  of  Hebrews  did  not, 
at  least  under  the  first  law,  apply  to  Hebrew  women  that 
had  been  purchased  as  concubines  for  the  master  or  his 
son.  If  she  ceased  to  please  him,  "  then  shall  he  let  her 
be  redeemed."  If  not,  food,  raiment,  and  marriage 
duty  were  not  to  be  diminished ;  on  failure  of  either,  she 
was  enfranchised.3 

The  Hebrew  servants  consisted  of  those  that,  from 
poverty,  either  sold  themselves  or  their  children,  or  were 
sold  for  debt  or  crime.4  If  the  Hebrew  sold  himself  to 
a  stranger,  he  was  subject  to  be  redeemed,  either  at  his 
own  instance  or  that  of  his  near  relatives,  by  paying  the 
wages  of  a  hired  servant  up  to  the  year  of  Jubilee.4  If 
his  master  was  a  Hebrew,  the  right  of  redemption  does 
not  seem  to  have  applied. 

A  marked  difference  was  made  in  the  law  as  to  the 
status  of  a  Hebrew  servant  and  one  bought  from  the 
heathen.  He  was  not  to  serve  as  a  bond-servant,  but  as 
a  hired  servant  and  a  sojourn er.6  He  was  not  to  be 
treated  with  rigor, but  as  a  brother  "waxen  poor."7  He 
lost,  in  his  bondage,  only  his  liberty,  none  of  his  civil 
rights.  He  was  still  a  citizen,  and  might  acquire  pro- 
perty of  his  own.8  Tiba,  one  of  Saul's  servants,  pos- 
sessed twenty  slaves  of  his  own.9  In  case  of  war,  the 

1  Exodus  21  :  3,  4.          2  Deut.  15  :  14.  8  Exod.  21  :  7-11. 

4  Lev.  25  :  39  ;  2  Kings  3  :  16-28,  4  :  1 ;  Ex.  22  :  2  ;  2  Chron.  12:8; 
Neh.  5  :  4,  5  5  Is.  50  :  1 ;  Matt.  18  :  25 ;  Michaelis's  Comm.  vol.  ii,  160, 
et  seq. 

6  Lev.  25  :  42,  47-51  j  1  Kings  9  :  22  ;  Neh.  5  :  5. 

8  Lev.  25  :  39,  40.  7  Lev.  25  :  39,  43. 

8  Lev.  10  :  49 ;  Priest's  Bible  Defence  of  Slavery,  139. 

9  2  Sam.  9  :  10. 


Xl  HISTORICAL   SKETCH   OF   SLAVERY. 

slaves  "  born  in  the  house"  were  frequently  armed  and 
went  forth  to  battle  with  their  master.1 

The  condition  of  the  other  class,  the  bond-servants, 
bought  from  the  stranger  and  the  heathen,  or  the  cap- 
tives taken  in  war,  was  very  different.2  They  were  pure 
slaves,  considered  as  "a  possession,"  and  "an  inherit- 
ance for  their  children  after  them,"  to  inherit  them  for 
a  possession.  They  were  "bondmen  forever."3  These 
were  very  numerous,  and  rigorous  treatment  of  them 
was  tacitly  allowed.  That  many  of  them  were  Africans 
and  of  negro  extraction,  seems  to  admit  of  but  little 
doubt.  Josephus  says,  "  King  Solomon  had  many  ships 
that  lay  upon  the  Sea  of  Tarsus.  These  he  commanded 
to  carry  out  all  sorts  of  merchandise,  to  the  remotest 
nations,  by  the  sale  of  which  silver  and  gold  were 
brought  to  the  king,  and  a  great  quantity  of  ivory,  apes, 
and  Ethiopians."4  These  were  doubtless  sometimes 
taken  captives  in  the  wars  of  Israel,5  and  frequently  ob- 
tained in  exchange  of  goods,  as  there  was  undoubtedly 
a  slave-trade  at  that  time,  in  which  the  Jews  sometimes 
engaged.6  This  practice  and  trade  are  negatively  proved 
by  the  prohibition  to  sell  the  Hebrew  women  that  were 

1  Lev.  25  :  49. 

2  Gen.  17  :  13;  Exodus  12  :  44-45  ;  Deuter.  20  :  14,  21  :  10,  11 ;  1 
Kings  9  :  20-22  ;  Michaelis's  Comm.  vol.  ii,  art.  123. 

3  Lev.  25  :  44,  45,  46. 

4  Antiquities  of  the  Jews,  Book  VIII,  ch.  7,  p.  293.   In  another  edition 
translated  "negroes."     See  2  Chron.  9  :  21 ;  1  Kings  10  :  21.    I  am 
aware  of  the  strictures  of  Gliddon  and  others  upon  the  common  accepta- 
tion of  the  term  "  Ethiopians.'7     I  am  inclined  to  believe  that  the  term 
was  applied  to  all  black  races,  the  Hindoo  as  well  as  the  negro.    See  re- 
marks of  Abbe  Gregoire  on  this  subject,  in  his  work  De  la  Littcrature  des 
Nlgres,  ch.  i. 

6  See  2  Chron.  14  :  9 ;  1  Kings  9  :  20,  22  ;  Isaiah  20  :  3,  4;  1  Chron. 
9:2;  Josephus,  Antiquities  of  the  Jews,  Book  III,  ch.  ii,  p.  85.  The 
Abbe  Gregoire  cites  and  approves  a  statement  of  J.  Ch.  Jahn,  in  his  Ar- 
chffiologia  Biblica,  that  the  Hebrews  had  negro  eunuchs.  Literature 
des  Negres,  p.  7. 

6  Joel  3:  8;  Ezek.  27:13. 


SLAVERY   AMONG   THE   JEWS.  xli 

slaves,  "unto  a  strange  nation."1  Among  the  Egyp- 
tians, with  whom  the  Jews  carried  on  a  brisk  commerce, 
we  shall  see  there  were  numbers  of  negro  slaves.  Their 
existence  among  the  latter  nation,  therefore,  is  a  matter 
of  no  great  surprise.2 

The  negro  among  the  Jews,  as  everywhere  he  is  found, 
was  of  a  proscribed  race.  He  was  even  forbidden  to 
approach  the  altar  to  offer  the  bread  of  his  God.3 

The  treatment  of  this  class  of  slaves,  among  the 
Hebrews,  was  extremely  rigorous.  Corporal  chastise- 
ment was  customary,  and  sometimes  resulted  in  death. 
In  such  event,  if  the  death  was  immediate,  the  master 
was  punished;  but  if  the  slave  lingered  "a  day  or  two," 
he  was  not  punished:  "For,"  said  the  law,  "he  is  his 
money."4  If  the  slave  was  maimed  by  loss  of  an  eye, 
or  a  tooth,  the  penalty  was  his  enfranchisement.5  The 
slave  sometimes  escaped,6  in  which  event,  the  master 
had  the  right  of  recaption.  This  right  seems  to  have 
extended  to  the  territory  of  the  neighboring  nations,  as 
was  exemplified  in  the  case  of  Shimei  pursuing  his 
fugitives  into  the  territory,  and  even  the  house  of  the 
King  of  Gath.7  With  the  characteristic  exclusiveness  of 
the  Jews,  they  denied  this  right  to  other  nations,  whose 
slaves  sought  refuge  among  them.8 

The  status  of  this  class  of  servants  was  very  different 
from  that  of  the  Hebrew  servant.  He  was  entitled  to 
no  civil  rights ;  could  make  no  complaint  against  his 
master,  and  could  not  be  heard  as  a  witness.  He  could 
not  redeem  himself,  because  he  could  acquire  nothing. 

1  Exodus  21  :  8. 

*  The  curious  are  referred  to  a  very  ingenious  argument  by  Rev.  J. 
Priest,  in  his  Bible  Defence  of  Slavery,  to  prove  that  all  the  Canaanites 
were  black,  and  that  "  heathen"  refers  entirely  to  the  black  race. 

*  The  flat-nosed  must  refer  to  the  negro.     Lev.  21  :  18. 

4  Exodus  21  :  20,  22  ;  see  Michaelis's  Conim.  vol.  iv,  art.  277. 

6  Exod.  21  :  26,  27.  6  1  Sam.  25  :  10. 

7  1  Kings  2  :  39,  40.  8  Deut.  23  :  15,  16. 


xlii  HISTORICAL   SKETCH   OF   SLAVERY. 


Xor  was  it  allowed,  among  the  Jews,  for  a  stranger  to 
possess  the  land.  Hence,  the  argument  that  the  bondage 
of  these  was  determined  by  the  year  of  Jubilee,  fails,  for 
they  had  no  "  possession"  to  which  they  could  return. 
Their  descendants  also  were  slaves,  following  the  condi- 
tion of  the  mother.  Thus  Solomon  says,  "I  got  me 
servants  and  maidens,  and  had  servants  born  in  my 
house."1 

The  value  of  slaves  doubtless  varied  with  their  quali- 
ties and  other  circumstances.  In  the  event  of  a  slave 
being  killed  by  a  vicious  ox,  the  price  was  fixed  by  the 
law,  without  regard  to  the  circumstances,  at  30  shekels.3 
In  the  case  of  releasing  a  person  from  a  vow,  a  more 
discriminating  scale  of  value  was  affixed,  which  we  may 
safely  take  as  the  customary  value  of  the  times.  A 
child  under  a  month  was  valued  at  nothing.  From  1 
month  to  5  years,  males  were  valued  at  5  shekels,  females 
at  3.  From  5  years  to  20,  males  were  valued  at  20  she- 
kels, females  at  10.  From  20  to  60  years,  males  at  50 
shekels,  females  at  30.  Upwards  of  60  years,  males  at 
15  shekels,  females  at  10.3 

There  were  public  slaves  as  well  as  private,  among  the 
Jews.  These  were  attached  to  the  sanctuary,  and  per- 
formed the  menial  labors  for  the  priests  and  Levites.4 
Thus  the  Gibeonites,  for  their  deceit,  were  condemned 
to  be  "hewers  of  wood  and  drawers  of  water."5  Their 
posterity  were  called  nethinims  (meaning  presented  as 
gifts),  and  are  mentioned  on  several  occasions.6  Samuel 
was  a  public  servant,  attached  to  the  sanctuary,  being  so 
devoted  from  his  mother's  womb.7 

Manumission  was  allowed  among  the  Jews.      The 

1  Eccles.  2  :  7.  See  also  Gen.  17  :  13,23  ;  15  :  3  ;  14  :  14;  Ex.  23  :  12  ; 
Psalm  86  :  16.  2  Ex.  21  :  32. 

3  Lev.  27  :  1-8  ;  Michaelis's  Comm.  voL  ii,  art.  124  ;  see  also  Hosea  3  :  2. 

4  Lev.  31  :  40,  47  ;  Michaelis's  Comm.  vol.  ii,  art.  126. 

6  Josh.  9  :  27.  6  1  Chron.  9:2;  Ezra  8  :  17,  20. 

7  1  Sam.  1  :  11. 


SLAVERY  AMONG  THE  JEWS.  xliii 

effect  of  it,  however,  was  not  to  confer  any  political 
privileges  upon  the  freed  man.  His  very  name  signified 
"uncleanness."1 

At  the  Jewish  feasts,  the  Mosaic  law  required  the 
slaves  to  be  invited,  and,  for  a  time,  to  enjoy  them  equally 
with  their  masters.  The  Sabbath  was  also,  expressly,  a 
day  of  rest  for  them.8 

Slavery  continued  among  the  Jews  so  long  as  they 
were  an  independent  nation.  Even  in  their  captivity 
they  did  not  lose  them ;  for  we  find,  upon  their  return 
under  Nehemiah,  one-sixth  of  the  people  that  came  up 
from  their  captivity  were  "  men-servants  and  maid-ser- 
vants," exclusive  of  the  children  of  Solomon's  servants.3 
In  the  days  of  the  Saviour,  they  still  retained  them.4 
!N"or  did  he  hesitate  to  avow  the  rightful  superiority  of 
the  master,  and  to  illustrate  his  precepts  by  this  relation.4 
The  kindly  feeling  existing  towards  the  slave,  is  exem- 
plified in  the  centurion  whose  sick  slave  was  "  dear  unto 
him."6 

"When  Nebuchadnezzar  and  his  hosts  came  and 
"pitched  against  Jerusalem,"  the  Jews,  alarmed  at  their 
situation,  made  a  covenant  with  Zedekiah,  their  king,  to 
manumit  all  their  Hebrew  servants.  After  the  imme- 
diate danger  was  removed,  however,  they  reduced  them 
again  to  servitude.  It  seems  that  the  provision  of  the 
law,  requiring  them  to  be  released  on  the  seventh  year, 
after  six  years  of  bondage,  had  been  disregarded,  and  it 
was  for  this,  among  other  sins,  that  Jeremiah  prophesied 
that  captivity  which  soon  overtook  them.7 

1  Michaelis's  Comm.  vol.  ii,  art.  126. 

2  Deut.  12  :  17,  18;  16  :  11.     Michaelis  conceives  that  the  provision 
prohibiting  the  muzzling  of  the  ox  while  threshing  the  corn,  Deut.  25  : 4, 
was  extended  to  the  slaves  eating  of  the  provisions  they  prepared  for  their 
masters.     Vol.  ii,  art.  130.  8  Neh.  7  :  57,  66. 

4  Mark  14  :  66. 

6  John  13  :  16 ;  8  :  35,  36 ;  Luke  17  :  7,  8,  9  ;  22  :  27. 

6  Luke  7:2.  7  2  Kings  25  :  1 ;  Jer.  34  :  8-20. 


CHAPTER  II. 

SLAVERY   IN   EGYPT. 

NEXT  to  the  Jews,  the  Egyptians  have  the  earliest 
authentic  history  ;  and  as  Ancient  Egypt  was  not  only 
the  cradle  of  the  arts  and  sciences,  but  has  been  justly 
said  to  be  "  the  first  that  found  out  the  rules  of  govern- 
ment, and  the  art  of  making  life  easy  and  a  people  happy,"1 
our  attention  seems  to  be  properly  called  next  to  the 
history  of  her  system  of  slavery. 

The  bondage  of  the  Israelites  shows  that  the  Egyptians 
were  not  only  slaveholders  at  an  early  day,  but  hard 
taskmasters.2  That  they  had  slaves,  not  only  agrestic, 
but  domestic,  attached  to  the  person  of  the  master,  is 
abundantly  shown  by  the  inscriptions  upon  the  nume- 
rous monuments  of  their  ancient  grandeur.3  It  is,  more- 
over, well  agreed  from  these  monuments,  that  many  of 
these  domestic  slaves  were  of  pure  negro  blood.4  In  one 
of  them,  a  large  number  of  negroes  are  represented  as 
prisoners  of  war.5  Herodotus  confirms  this  conclusion, 

1  Rees's  Cyclopaedia,  Article  "  Egypt." 

2  Slaves  constituted  a  part  of  the  present  the  King  of  Egypt  gave  to 
Abraham.     Gen.  12  :  16. 

8  Egypt  and  its  Monuments.    By  Dr.  Hawks.     2d  ed.  p.  144. 

4  The  curious  on  this  point  are  referred  to  Nott  and  Gliddon's  Types  of 
Mankind,  p.  248,  et  seq.   These  monuments  show  negro  slaves  in  Egypt  at 
least  1600  years  before  Christ,  p.  255,  262,  268,  307.     That  they  were 
the  same  happy  negroes  of  this  day  is  proven  by  their  being  represented 
in  a  dance  1300  years  before  Christ,  p.  263.   The  negro  mummy,  described 
on  page  267,  puts  their  existence  beyond  cavil. 

5  Wallon,  Histoire  de  1'Esclavage,  torn,  i,  p.  24, 27,  n.   Sir  G.  Wilkinson 


SLAVERY   IN   EGYPT.  xlv 

and  informs  us  that  Ethiopia  furnished  Egypt  with  gold, 
ivory,  and  slaves.1  Slave-markets  undoubtedly  there 
were,  as  the  history  of  Joseph  exemplifies ;  and  it  is 
said,  that  a  city  founded  by  fugitive  slaves  was  one  of 
the  principal  slave-markets.2 

Upon  one  of  the  monuments  at  Thebes,  an  Egyptian 
scribe  is  represented  as  registering  negroes  as  slaves, 
both  men,  women,  and  children.3  Upon,  another,  the 
victorious  Egyptian  king  is  represented  as  putting  to 
flight  a  troop  of  negroes.4  In  still  another,  they  are  re- 
presented as  indulging  in  their  favorite  amusement  of 
this  day, — the  dance.5  These  representations  are  so  per- 
fect, that  the  most  unpractised  eye  would  recognize  them 
at  a  glance.  A  negro  skull  was  exhumed  in  the  Island 
of  Malta,  among  the  ruins  of  Hadjerkem.6 

Purchase  and  conquests  seem  to  be  the  principal 
sources  of  Egyptian  slavery.7  A  law  abolishing  slavery 
for  debt,  and  referred  to  by  Diodorus,  shows  that  prior 
to  that  time  this  was  another  prolific  source.  He  also 
notices  the  substitution,  by  one  of  the  emperors,  of 
slavery,  for  the  penalty  of  death.8  Such  commutation 
made  the  recipients  public  slaves,  of  which  there  was  a 
vast  number.  These  were  engaged  upon  the  public 

says,  "  It  is  evident  that  both  white  and  black  slaves  were  employed  as 
servants/'  Egypt  and  its  Monuments,  p.  169.  A  picture  of  this  inscrip- 
tion may  be  found  in  Types  of  Mankind,  p.  250.  See  also  Pulszky's 
contribution  to  Indigenous  Races  of  Man,  for  other  and  farther  proofs 
on  this  point,  pp.  150,  189. 

1  Herod.  3  :  97. 

2  Plin.  Hist.  Nat.  vi,  34,  cited  by  "Wallon,  torn,  i,  p.  25,  n.     See  re- 
marks of  Sir  Gardner  Wilkinson,  quoted  by  Dr.  Hawks,  Egypt  and  its 
Monuments,  p.  168. 

3  See  representation  of  this  in  Types  of  Mankind,  252. 

4  Types  of  Mankind,  269.  6  Ibid.  263. 

6  Wilkes's  Exp.  Exp.  vol.  ix,  186. 

7  Wallon,  torn,  i,  p.  23  ;  Odyssey,  Bk.  XIV,  260  ;  Egypt  and  its  Monu- 
ments, by  Dr.  Hawks,  p.  164,  168. 

8  Diod.  i,  75,  79. 


HISTORICAL   SKETCH   OF  SLAVERY. 

works,  and  it  was  the  boast  of  the  Pharaohs,  that  the 
hand  of  no  Egyptian  labored  in  their  erection.1 

Though  the  negroes  in  Egypt  were  generally  slaves, 
"  prejudice  of  color"  does  not  seem  to  have  been  so 
great  as  at  this  day,  as  we  find  in  one  of  their  inscrip- 
tions, the  representation  of  the  negro  queen  of  one  of 
the  emperors  receiving  equal  homage  with  himself.2 

Among  the  Egyptians  we  first  find  an  account  of 
eunuchs,  exhibiting  a  feature  of  ancient  slavery,  per- 
haps the  most  cruel  and  barbarous.3  Moses  sought,  by 
every  means,  to  deter  the  Jews  from  such  a  custom,  yet 
we  find  eunuchs  among  the  king's  household,4  and  the 
prophet  offering  such  consolation.5 

The  treatment  of  slaves  by  the  Egyptians  was  very 
rigorous.  Homicide  was  punished  in  every  one  except 
the  master,  but  as  to  him  there  seems  to  have  been  no 
penalty.  In  the  whole  kingdom  there  was  but  one 
temple  (that  of  the  Egyptian  Hercules,  near  Canope) 
in  which  fugitives  might  take  refuge  from  cruel  treat- 
ment.6 "  From  the  monuments,"  says  Taylor,  "  we  find 
that  the  mistress  of  a  mansion  was  very  rigid  in  en- 
forcing her  authority  over  her  female  domestics.  We 
see  these  unfortunate  beings  trembling  and  cringing 
before  their  superiors,  beaten  with  rods  by  the  overseers, 
and  sometimes  threatened  with  a  formidable  whip,  wielded 
by  the  lady  of  the  mansion  herself."  Other  scenes  upon 
these  monuments  indicate  kinder  treatment.  "  In  a 
tomb  at  Thebes,"  says  Dr.  Hawks,  "  is  a  representation, 
copied  by  Wilkinson,  of  a  lady  enjoying  the  bath,  who 
is  waited  on  by  four  female  servants,  where  nothing 

1  Wdlon,  Hist,  de  1'Esclavage,  torn,  i,  p.  28  ;  Egypt  and  its  Monuments, 
p.  168. 

2  Wallon,  torn,  i,  p.  29,  n.;  Types  of  Mankind,  262. 

•  Gen.  37  :  36.    The  word  here  translated  "  officer"  means  literally 
"  eunuch."     See  Egypt  and  its  Monuments,  p.  169. 

*  2  Kings  9:  32.  6  Is.  56:  3. 
6  Wallon,  Hist,  de  1'Esclavage,  &c.,  torn,  i,  p.  30. 


SLAVERY   IN   EGYPT.  xlvii 

appears  to  indicate  any  other  feeling  than  that  of  mutual 
kindness,  and  on  the  part  of  the  attendants  respectful 
affection."1  Other  representations,  upon  the  monuments, 
show  the  cruelty  of  the  taskmasters,  and  the  use  of  the 
bastinado.3 

Whenever,  from  the  excess  of  the  supply  over  the  de- 
mand, labor  becomes  so  cheap  that  the  free  laborer  can 
make  for  his  wages  only  his  food  and  clothing,  there 
ceases  to  be  value  in  property  in  slaves ;  on  the  contrary, 
the  ownership  is  a  burden,  because  the  old,  the  infirm, 
and  the  infant,  require  care,  clothing,  and  food,  without 
remunerating  labor.  The  feudal  system  in  Middle  Eu- 
rope and  Britain  laid  the  foundation  for  the  emanci- 
pation of  the  serfs,  at  this  stage  of  society.  In  Egypt 
and  the  East,  a  more  refined  system  of  bondage  was 
adopted  in  lieu  of  that  of  personal  slavery,  which  con- 
tinued the  degradation  of  the  slaves,  while  it  relieved 
the  masters  from  the  obligations  of  ownership.  This 
system  was  that  of  castes,  by  wrhich  the  proprietorship 
of  the  lands  and  the  holding  of  the  oifices  of  govern- 
ment were  restricted  to  those  and  their  descendants  who 
were  the  former  masters,  while  the  laboring  classes 
and  their  descendants  were  arranged  in  subordinate 
castes,  ranking  in  dignity  according  to  the  supposed 
honorableness  of  their  occupations ;  and  that  this  might 
be  a  perpetual  condition,  the  children  were  prohibited, 
under  severe  penalties,  from  attempting,  under  any  cir- 
cumstances, to  improve  their  condition  by  obtaining  a 
position  in  a  higher  caste.3  The  transition  from  a  state 
of  slavery  to  that  of  an  inferior  caste  was  gradual  and 

1  Egypt  and  its  Monuments,  p.  144,  2d  ed. 

2  Egypt  and  its  Monuments,  p.  219,  220.   A  remarkable  picture  in  the 
Tomb  of  Roschere,  at  Thebes,  gives  so  accurate  a  representation  of  the 
Jews  engaged  in  the  making  of  bricks,  overlooked  by  their  Egyptian  task- 
masters, as  to  cause  doubts  to  be  expressed  of  its  authenticity.     Ibid.  p. 
222. 

3  Prichard's  Analysis  of  Egyptian  Mythology,  Book  IV,  ch.  iii,  sec.  1. 


Xlviii  HISTORICAL   SKETCH    OF    SLAVERY. 

easy;  and  the  fact  that  the  laborers  were  chiefly 
foreigners  and  captives  and  their  descendants,  the  pre- 
servation of  the  distinctive  castes  became  an  easy  mat- 
ter, the  line  being  drawn  by  nature  herself  in  the  dif- 
ferent races.1 

The  number  of  these  castes  in  Egypt  (about  which 
there  is  disagreements  in  different  authors),  may  be  re- 
duced to  five.  1st.  The  sacerdotal  order,  or  priesthood. 
2d.  The  military.  3d.  The  herdsmen.  4th.  The  agri- 
cultural and  commercial  class.  5th.  The  artificers  or 
laboring  artisans,2  ranking  in  dignity  as  they  are  named. 
To  the  two  former  classes  belonged,  by  inheritance,  the 
lands  and  the  enjoyment  of  all  the  honorable  offices  of 
the  government.  The  three  lower  classes  differed  only 
in  their  occupations,  and  might,  indeed,  be  properly 
ranked  together,  as  Strabohas  done  in  his  classification.3 
These  were  the  original,  slaves  of  Egypt,  and  by  the 
change  have  reaped  no  benefit.  The  privileged  orders 
keep  them  in  complete  subjection;  laboring  without 
hope  of  advancement,  "and  for  wages,"  says  Volney, 
"barely  sufficient  to  sustain  life."4  " The  rice  and  corn 
they  gather  are  carried  to  their  masters,  and  nothing  is 
reserved  for  them  but  dourra  or  Indian  millet,  of  which 
they  make  a  coarse  and  tasteless  bread,  without  leaven."5 

This  system  of  castes  gives,  necessarily,  a  permanent 
and  remarkably  uniform  character  to  a  nation ;  and 
hence  Egypt,  to-day,  would  be,  in  her  internal  polity,  the 
same  as  Egypt  in  the  time  of  Herodotus  and  Diodorus, 
had  not  change  of  government  and  Mussulman  rule  crip- 
pled more  completely  her  energy,  and  stagnated  her  in- 
dustry. Recent  travellers  testify,  that  the  cultivators  of 
the  present  day  retain  of  the  fruit  of  their  industry 

1  "Wallon,  de  1'Esclavage,  &c.,  torn,  i,  p.  22. 

2  Prichard,  as  above,  p.  377,  and  authorities  cited  by  him. 

3  Strabo,  Lib.  XVII. 

4  Prichard,  378 ;  Wallon,  de  1'Esclavage,  &c.,  torn,  i,  p.  22. 
6  Kees's  Cyclopedia,  Art.  "  Egypt." 


SLAVERY   IN   EGYPT. 

barely  enough  to  support  existence.  Their  cattle  and 
agricultural  implements  even,  belong  to  the  landlord.1 
Over  them  the  landlord  exercises  unlimited  control, 
with  power  to  punish  for  offences,  and  to  settle  all  dis- 
putes, without  liberty  of  appeal.2 

"While  the  system  of  castes  seems  thus  to  have  re- 
moved from  the  Caucasian  races  the  status  of  personal 
slavery  to  the  negro,  it  brought  no  relief,  for  the  slave- 
market  of  the  present  day,  in  Cairo,  offers  still  to  the 
purchaser  the  children  of  Ethiopia,  from  whom  are  sup- 
plied the  personal  domestics  of  Egypt.3 

There  is  one  other  class  of  slaves,  at  the  present  day, 
bought  and  sold  in  Egypt.  These  are  the  pure  white 
Circassians,  from  whom  the  harems  are  supplied ;  and 
many  of  whose  youths  are  purchased  and  educated, 
sometimes,  for  the  highest  offices  in  the  state.4 

1  Olin's  Travels  in  the  East,  vol.  i,  p.  40. 
8  Ibid.  p.  43. 

3  Ibid.  p.  61 ;  Stephens's  Egypt,  &c.,  vol.  i,  p.  39  ;  Types  of  Mankind, 
251.     Mr.  Gliddon  states  the  price  of  a  negress  to  be  about  fifty  dollars  ; 
Wilkes's  Expl.  Exped.  vol.  ix,  p.  185. 

4  Olin's  Travels  in  the  East,  vol.  i,  p.  34. 


CHAPTER  HI. 

SLAVERY  IN   INDIA. 

WE  turn  naturally  from  Egypt  to  India,  for  the  re- 
markable similarity  in  their  law  of  castes  seems  hardly 
to  be  a  coincidence,  but  indicates,  in  some  way,  a  com- 
mon origin.  According  to  Menu,  all  men  were  created, 
respectively,  from  the  mouth,  arm,  thigh,  and  foot  of 
Deity ;  and  separate  duties  were  allotted  to  each,  accord- 
ing to  their  origin.  The  first  class  (from  the  mouth), 
had  wisdom  to  rule  and  to  sacrifice.  The  second  (from 
the  arm),  had  strength  to  fight  and  protect  the  others. 
The  third  (from  the  belly  and  thighs),  were  allotted  to 
provide  nourishment  for  the  whole,  by  agriculture  and 
traffic.  The  fourth  (from  the  feet),  were  naturally  ser- 
vile,  formed  to  labor  and  to  serve.1  There  were  subdi- 
visions of  some  of  these  classes,  corresponding,  with 
striking  similarity,  to  the  Egyptian  castes.  The  first 
clasa  among  the  Hindoos  (originally  Brahmans,2  now 
Bramins),  and  the  military,  or  second  class,  as  among 
the  Egyptians,  monopolized  all  the  priesthood,  the  go- 
vernment, and  the  learning.  The  agriculturists  were 
mere  tenants,  having  no  interest  in  the  land.  And  the 
fourth,  or  servile  class,  were  declared  by  Menu,  to  be 

1  Richard's  Analysis,  &c.,  note  to  Book  IV,  ch.  iii,  p.  397  ;  Rees's  Cy- 
clopaedia, Article  "Caste;"  Institutes  of  Menu;  Wallon,  torn,  i,  p.  31. 

2  Some  have  supposed  Brachman  to  be  a  contraction  of  Abrachman, 
and  thus  seek  to  trace  this  leading  caste  of  the  Hindoos  to  a  descent  from 
Abraham  and  his  wife,  Kiturali.    Rees's  Cyclopaedia,  Article  Brachman. 


SLAVERY  IN   INDIA.  11 

naturally  slaves.1  To  serve  a  Brahman,  was  declared 
their  most  laudable  action." 

The  same  provision  existed  and  exists  in  India  as  in 
Egypt,  in  reference  to  the  immutable  status  of  the  differ- 
ent castes,  and  similar  penalties  inflicted  for  any  effort 
to  seek  to  migrate  from  the  one  to  another.3  The  effect 
of  which  is,  that  India,  to-day,  is  comparatively  the  same 
as  India  three  centuries  before  Christ,  when  Megasthenes 
accompanied  Alexander  in  his  conquest,  and  left  a  record 
of  his  impressions.4 

Though  the  servile  class,  or  Soudras,  were  declared  by 
Menu  to  be  naturally  slaves,  yet  we  find,  in  modern 
times,  many  of  them  that,  either  from  the  clemency  of 
their  masters  or  the  unprofitableness  of  their  labor,  are 
emancipated  from  the  control  of  any  particular  master. 
And  while  those  that  belong  to  the  military  and  agricul- 
tural castes  seem  originally  to  have  been  free,  yet  we 
find,  in  later  times,  from  voluntary  sale  or  other  causes, 
many  of  them  have  become  slaves  to  their  superior 
castes;  there  being  only  one  restriction,  according  to 
Hindoo  law,  and  that  is,  that  no  one  shall  become  a 
slave  to  a  master  of  his  own  or  an  inferior  caste.5  In  the 
event  of  a  marriage  between  persons  of  different  castes, 
the  offspring  followed  the  condition  of  the  inferior 
parent.6 

By  the  Hindoo  law,  slaves  might  become  such,  by 
voluntary  sale,  by  sale  or  gift  of  children,  by  sale  for 

1  Institutes  of  Menu,  ch.  viii,  v.  414 ;  Adam,  on  Slavery  in  India,  p. 
13 ;  Wallon,  torn,  i,  p.  32. 

2  Wallon,  torn,  i,  32,  n.  5.     It  will  be  perceived  that,  by  this  means> 
slavery  became  a  part  of  the  religion  of  the  Hindoos.    Ibid.  35. 

3  Rees's  Cyclopaedia,  Article  "  Caste  ;"  Wallon,  torn,  i,  p.  34,  35. 

4  Arrian,  Strabo,  and  Diodorus  derived  all  their  information  from  Me- 
gasthenes.     See  Prichard's  Analysis  of  Egyptian  Mythology,  note  to 
Book  IV,  ch.  iii,  p.  397. 

5  Adam  on  Slavery  in  India,  pp.  12,  13,  and  authorities  cited  by  him  ; 
Wallon,  de  1'Esclavage,  &c.,  torn,  i,  p.  32. 

6  Wallon,  torn,  i,  p.  34. 


I'll  HISTORICAL   SKETCH   OF  SLAVERY. 

debt,  by  captivity,  by  birth,  by  marriage  to  a  slave,  or  by 
sale  as  punishment  for  crime.1  Children  follow  the  con- 
dition of  their  mother ;  and  all  slaves  are  inherited  as  a 
part  of  the  estate  of  a  deceased  master.  The  agrestic 
slaves  (such  as  are  attached  to  the  soil),  are  subject  to 
the  laws  of  ancestral  real  property ;  while  the  domestics, 
attached  to  the  person,  pass  under  the  laws  regulating 
personal  property.2 

The  Hindoo  law  gave  the  master  unlimited  powers 
over  his  slaves.  "  It  makes  no  provision  for  the  protec- 
tion of  the  slave  from  the  cruelty  and  ill-treatment  of  an 
unfeeling  master,  nor  defines  the  master's  power  over 
the  person  of  his  slave.  It  allows  to  the  slave  no  right 
of  property  even  in  his  own  acquisitions,  except  by  the 
indulgence  of  his  master."3 

The  modes  of  enfranchisement,  by  this  law,  were 
various.  Among  others,  the  preservation  of  the  master's 
life;  or  the  bearing  to  him  a  son,  by  a  female  slave, 
operated  as  a  manumission.4 

When  India  passed  under  Mussulman  rule,  the  Mo- 
hammedan law  of  slavery  became  engrafted  upon  that 
of  India,  and,  until  the  possession  by  Britain,  was  the 
paramount  law. 

The  Mohammedan  law  recognized  but  two  legitimate 
sources  of  slavery,  viz. :  captive  infidels,  and  their  de- 
scendants; these  are  subject  to  all  the  laws  of  contract, 
sale,  and  inheritance,  as  other  property.  They  cannot 
marry  without  the  consent  of  their  masters  ;  they  can- 
not testify  as  witnesses;  they  cannot  be  parties  to  a  suit; 
they  are  ineligible  to  all  offices  of  profit  and  trust ;  nor 
can  they  contract,  or  acquire,  or  inherit  property. 

1  Adam,  on  Slavery  in  India,  14,  citing  Colebrooke's  Digest  of  Hindoo 
Law,  vol.  ii,  pp.  340,  346,  368 ;  Menu's  Institutes  of  Hindoo  Law,  ch. 
viii,  v.  415 ;  Wallon,  de  1'Esclavage,  &c.,  torn,  i,  p.  30. 

2  Ibid. 

3  Colebrooke,  quoted  by  Adam,  p.  17;  Wallon,  de  1'Esclavage,  &c.,  torn. 
i,  33.  «  Adam,  on  Slavery  in  India,  17, 19. 


SLAVERY  IN   INDIA.  liii 

The  master's  control  over  the  slave  is  very  great ;  and 
his  murder  subjects  the  master  to  no  punishment.  If 
another  person  kills  him,  his  master  may  commute  the 
punishment  for  a  pecuniary  compensation. 

This  description  of  slaves  cannot  be  emancipated. 
There  are  other  or  qualified  slaves  who,  under  certain 
circumstances,  such  as  bearing  children  to  the  master, 
become  free.1 

When  India,  through  the  agency  of  the  East  India 
Company,  passed  under  British  rule,  it  became  a  matter 
of  grave  concern,  how  far  the  laws  of  Britain  should  be 
substituted  for  the  native  regulations.  After  various 
provisions,  looking  wisely  to  the  adoption  of  laws  "  suit- 
able to  the  genius  of  the  people,"  it  was  finally  esta- 
blished, in  1793,  that,  "In  suits  regarding  succession,  in- 
heritance, marriage,  and  caste,  and  all  religious  usages 
and  institutions,  the  Mohammedan  law,  with  reference 
to  Mohammedans,  and  the  Hindoo  law,  with  regard  to 
Hindoos,  are  to  be  considered  the  general  rules  by  which 
the  Judges  are  to  form  their  decisions."  Under  this 
provision,  it  was  held  that  the  Hindoo  and  Mohammedan 
laws  of  slavery  were  established,  as  to  those  coming 
under  their  respective  influence ;  and  these  laws  were 
enforced  by  the  British  East  India  Court,  from  the  date 
of  this  regulation  (1793)  until  the  nominal  abolition  of 
slavery  by  the  East  India  Company.3 

Slavery  in  British  India,  however,  was  not  confined 
entirely  to  those  so  declared  by  the  Hindoo  and  Moham- 
medan law.  There  were  slaves,  made  so  originally 
and  directly  under  the  law  of  the  British  Government. 

1  This  summary  of  the  Mohammedan  law  is  extracted  from  Macnagh- 
ten's  Principles  and  Precedents  of  Mohammedan  Law,  as  cited  by  Adam, 
on  Slavery  in  India,  pp.  20,  et  seq.,  41,  63,  et  seq. ;  see  also  Buchanan's 
Travels  in  Mysore,  &c.,  vol.  ii,  495. 

2  See  Adam,  on  Slavery  in  India,  24-27  ;  Harrington's  Analysis  of  the 
Laws  and  Regulations,  vol.  i,  p.  1,  et  seq. ;  Macnaghten's  Hindoo  Law, 
vol.  i,  p.  113. 


llV  HISTORICAL   SKETCH   OF   SLAVERY. 

Thus,  in  1772,  certain  bands  of  robbers,  termed  Deceits, 
infesting  the  public  roads,  upon  conviction,  were  to  be 
executed  publicly  ;  "  and  the  family  of  the  criminal  shall 
become  the  slaves  of  the  state,  and  be  disposed  of  for  the 
general  benefit  and  convenience  of  the  people,  according  to 
the  discretion  of  the  government."1  Thus,  by  the  Hindoo 
law,  men  were  enslaved  for  their  own  crimes ;  by  the 
British  law,  for  the  crimes  of  their  parents.  This  law 
was  repealed  in  1793. 

The  servile  class  in  India  are  very  nearly  the  color  of 
the  African  negro.  There  are,  however,  distinguishing 
characteristics,  showing  them  to  be  of  different  races. 
The  negro  proper,  however,  has  found  his  way  to  India, 
and  is  there,  as  he  is  everywhere,  in  a  state  of  slavery. 
The  East  India  Company  early  discovered  his  adapta- 
tion to  the  labor  of  this  hot  climate,  and  worked  their 
most  extensive  plantations  of  the  nutmeg  and  clove  by 
African  labor.2  And  even  at  the  time  that  British 
cruisers  were  hovering  on  the  western  coast  of  Africa, 
more  effectually  to  prevent  the  African  slave-trade,  on 
the  eastern  coast  a  similar  trade  was  being  prosecuted, 
within  their  knowledge  and  to  their  own  dominions, 
declared  by  an  order  of  the  Vice-President  in  Council, 
on  9th  September,  1817,  to  be  "  of  a  nature  and  ten- 
dency scarcely  less  objectionable  than  the  trade  which 
has  been  carried  on  between  the  western  coast  of  Africa 
and  the  West  India  Islands."3  Prohibitory  regulations 
were  afterwards  adopted,  the  effect  of  which,  according 
to  Mr.  Chaplin's  Report,  was  to  "  increase  the  price, 
without  putting  a  stop  to  the  traffic."4  Mr.  Adam,  an 

1  Adam,  on  Slavery  in  India,  38  ;  Colebrooke's  Digest  of  the  Regula- 
tions, Supplement,  p.  7,  114;  Harrington's  Analysis,  vol.  i,  p.  308. 

2  Adam,  on  Slavery  in  India,  40. 

3  Harrington's  Analysis,  vol.  iii,  p.  755  j.  Adam,  on  Slavery  in  India, 
78,  149. 

4  Report,  pp.  150,  151 ;  Adam,  14& 


SLAVERY   IX   INDIA.  Iv 

eyewitness,  gives  it  as  his  opinion,  that  the  trade  had 
not  entirely  ceased  in  1840.1 

Slaves  cannot  be  valuable  where  free  labor  demands 
only  about  four  cents  per  day  for  wages;  and,  hence, 
we  are  not  astonished  to  find  the  prices  of  slaves  vary- 
ing from  eleven  shillings  to  £Z  5s."  The  treatment 
of  the  slaves  in  British  India  was  generally  mild.  "  The 
slave  is  a  favorite  and  confidential  servant  rather  than 
an  abject  drudge.  .  .  .  The  mildness  and  equanimity 
of  the  Indian's  temper  (or  his  apathy  and  slowness,  if 
this  better  describe  the  general  disposition  of  the  people), 
contribute  to  insure  good  treatment  to  the  slave."3  The 
food  and  raiment  allowed  them  were  scanty,  but  fully 
equal  to  that  of  the  free  laborers  of  that  class.4  In  India, 
as  in  all  Eastern  countries,  many  of  the  slaves  are 
eunuchs. 

The  East  India  Company  have  lately  abolished  slavery 
within  their  dominions.  This  was  necessarily  merely 
nominal.  The  slaves  remain  with  their  old  ma 
receiving  as  wages  what  they  formerly  received  as  food 
and  raiment.  Their  actual  servile  condition  remains 
unchanged.  The  number  of  them,  in  1840,  was  estimated 
at  about  one  million.5 

1  Slavery  in  India,  151.  2  Adam,  107. 

8  Mr.  Colebrooke's  official  paper  of  1812. 
4  Buchanan's  Travels  in  Mysore,  &c.,  vol.  ii,  370,  491. 
6  Adam,  129. 


CHAPTER  IV. 

SLAVEKT  IN  THE   EAST. 

AMONG  the  earliest  records  of  the  Assyrian  Empire, 
we  find  the  model  of  that  system  of  slavery  which  dis- 
tinguishes all  oriental  nations.  Tradition  ascribes  to 
Queen  Semiramis  the  introduction  of  the  barbarous 
custom  of  making  eunuchs  of  slaves.  The  Zendavesta, 
the  most  ancient  of  their  records,  and  containing  the 
pretended  revelations  of  Zoroaster,  recognizes  four 
classes  or  castes :  the  priests,  the  warriors,  the  agricul- 
turists, and  the  artisans.  Infidels  and  negroes  (les  fits  des 
tenebres\  taken  captive  in  war,  were  reduced  to  slavery.1 

The  Medes  and  Persians,  the  successors  to  the  religion 
of  Zoroaster,  exhibit  oriental  slavery  in  its  full  perfec- 
tion. The  number  of  domestic  slaves  attending  the 
person  and  the  various  household  duties  was  very 
great.  The  sources  of  slavery  were  chiefly  captives 
taken  in  war,  and  children  purchased  either  from  their 
parents  or  from  slave-dealers.  The  merchants  of  Phe- 
nicia  and  of  Greece  made  them  one  of  the  articles  of 
commerce.  Hence  the  slaves  were  very  numerous  at 
Tyre  and  in  the  Phenician  cities.  The  satrap  of  Babylon 
and  of  the  Assyrian  country,  furnished  annually  to  the 
Persians  five  hundred  young  eunuchs.  And  in  the  ex- 
pedition against  Ionia,  the  most  beautiful  children  were 
reserved  and  condemned  to  this  condition.*  The  fidelity 
of  the  eunuchs  made  them,  according  to  Herodotus, 

1  Kees's  Cyclopaedia,  Art.  Zendavesta ;  Wallou,  de  1'Esclavage  dans 
I'AntiquitS,  torn,  i,  45,  47. 

2  Wallon,  de  1'Esclavage  dans  I'Antiquite',  torn,  i,  47.  In  speaking  of  the 


SLAVERY  IN   THE    EAST.  Ivtt 

highly  prized  among  barbarous  nations,  and  they  con- 
sequently filled  the  highest  offices  in  the  households  of 
the  nobles.1 

The  power  of  the  master  over  the  slave,  among  the 
Persians,  was  almost  unlimited.  Herodotus  says,  it  was 
not  allowed  a  Persian  to  punish  one  of  his  slaves  cruelly 
for  a  single  fault,  but  if,  after  due  consideration,  his 
faults  were  found  to  outnumber  and  outweigh  his  virtues, 
the  master  might  then  follow  the  dictates  of  his  anger.8 
Sometimes  the  slaves  revolted,  as  at  Tyre,  where  they 
massacred  the  freemen,  and  took  possession  of  the  city.3 

Frequently  the  nobles  armed  their  slaves,  and  led 
them  in  battle.  The  Parthians  are  said  to  pursue  the 
same  course.4  At  Babylon  there  was  a  custom,  at  a  cer- 
tain fete,  for  the  masters  to  obey  their  slaves  for  five  days. 
One  was  selected  to  rule  as  king.  At  the  expiration  of 
the  fete  he  was  killed.5 

"What  has  been  said  of  Persia  is  true  of  all  the  sur- 
rounding countries.  In  fact,  in  the  countries  of  the  East, 
slavery  is  universally  an  element  of  the  social  organiza- 
tion. A  celebrated  French  writer  upon  this  subject,  in 
summing  up,  says,  "  Comme  on  vient  de  le  voir  par  ce 
rapide  apergu  pour  1'orient,  cet  antique  berceau  du  genre 
humain  et  de  la  civilisation  du  monde,  1'organisation 
sociale  se  rdsume  en  deux  mots  qui  sont,  pour  ainsi  dire, 
les  deux  termes  d'un  meme  rapport:  despotisme,  escla- 
vage."6  China,  with  her  wonderful  self-existing  and 
self-perpetuating  civilization,  forms  no  exception  to  this 
remark.  At  least  twelve  hundred  years  before  the 
Christian  era,  captivity  and  other  sources  furnished 
slaves  to  the  Chinese.  The  most  fruitful  source,  was 

number  of  domestics,  he  enumerates  "  legions  of  cooks,  musicians,  dan- 
cers, valets  de  table,  porters,  and  keepers  of  baths."  Cyrus,  we  recollect, 
among  the  Medes,  acted  as  a  wine-bearer.  Xen.  Cyrop. 

1  Herod,  viii,  105.  a  Herod,  i,  137.  8  Wallon,  torn,  i,  p.  50. 

4  Xenophon,  Cyrop.  viii,  8,  20  ;  Wallon,  torn,  i,  52,  note. 

6  Wallon,  torn,  i,  p.  51 ;  Dion.  Chrysost.  Orat.  iv,  De  Regno,  p.  69. 

6  Wallon,  torn,  i,  p.  52. 


HISTORICAL   SKETCH   OF   SLAVERY. 

the  sale  of  themselves  and  their  children  by  the  poor. 
The  children  of  slaves  were  slaves  by  birth ;  and  on  the 
master's  death,  were  the  subjects  of  inheritance. 

The  treatment  of  slaves  in  China  was  milder  than  in 
the  East  generally.  The  law  protected  his  life  and  his 
person.  The  branding  of  a  slave  with  fire  worked  his 
enfranchisement.  "Thus,"  says  "Wallon,  "the  mark  of 
slavery  became  his  title  to  liberty."1 

When  the  Greeks  and  Eomans  successively  overran 
the  East,  they  introduced  no  change  in  the  system  of 
slavery.  It  was,  if  different,  more  lenient  in  practice 
than  their  own.  When  Arabia,  under  the  infatuation 
of  religious  zeal,  brought  the  surrounding  nations,  at 
one  time,  under  her  power,  and  to  the  knowledge  of  the 
faith,  she  found  nothing  in  slavery  that  was  not  only 
consistent  with,  but  expressly  commanded,  in  that  great 
miracle  of  the  Prophet,  the  Koran.2  Years  and  ages, 
hence,  have  made  but  little  change  in  the  law  of  Eastern 
slavery,  though  much  of  Eastern  glory  has  departed. 

Here,  too,  we  find  the  negro  still  a  slave.3  The  num- 
bers, in  ancient  times,  we  cannot  estimate.  In  later 
days,  a  brisk  trade  has  been  and  even  now  is  carried 
on  with  the  eastern  coast  of  Africa  by  Arab  dealers,  who 
supply  Persia  and  Arabia  with  African  slaves.4 

Commodore  Perry  describes  the  Japanese  slavery  of 
the  present  day  as  of  the  most  abject  and  wretched  cha- 
racter. The  poor  frequently  sell  themselves  as  slaves,  the 
price  varying  from  two  to  ten  dollars.  The  different  ranks 
in  society  were  distinguished  by  the  metal  of  which  the 
hair-pin  was  made,  whether  of  gold,  silver,  or  brass.5 

1  See  Wallon,  torn,  i,  p.  40.     He  refers  to  and  cites  freely  M.  Biot, 
MSmoires  sur  les  Chinois. 

2  By  its  provisions,  homicide  of  a  freeman  only  was  murder,  and  al- 
lowed the  retribution  by  the  avenger  of  blood.     Chap,  ii,  173. 

8  Texier's  Armenie,  Perse,  et  Me~sopotamie,  1842,  PL  113.  Quoted  in 
Types  of  Mankind,  254. 

4  Harrington's  Analysis,  vol.  iii,  p.  748 ;  Adam,  on  Slavery  in  India, 
78.  s  United  States  Japan  Exped.  vol.  i,  pp.  219-226. 


CHAPTER  V. 

SLAVERY  IN   GREECE. 

IT  has  been  considered  a  striking  contradiction  in  the 
character  of  the  Greeks,  that  while  they  professed  to  be 
worshippers  of  liberty,  during  their  whole  history  they 
not  only  tolerated  but  encouraged  slavery,  and  in  such 
a  form,  that  it  became  a  proverb,  that  "  at  Sparta  the 
freeman  is  the  freest  of  all  men,  and  the  slave  the 
greatest  of  slaves."1  "Whether  this  is  really  a  contra- 
diction we  shall  elsewhere  consider,  when  we  examine 
the  political  and  social  influences  of  slavery ;  and  pei- 
haps  we  may  find  that  true  philosophy  confirms  the  con- 
clusions of  Aristotle  and  Plato,  that  this  is  an  element 
essential  in  a  true  republic,  for  the  preservation  of  per- 
fect equality  among  citizens,  and  the  growth  and  en- 
couragement of  the  spirit  of  liberty. 

Our  inquiry  now  is  as  to  the  facts,  and  we  find  slavery 
among  the  Greeks  from  their  earliest  authentic  history. 
True,  it  is  stated,  that  among  the  Hellenes,  in  the  ear- 
liest times,  there  was  no  slavery.8  Yet,  in  the  time  of 
Homer,  we  find  it  in  general  use ;  not  only  of  captives 
taken  in  war,  but  of  slaves  purchased  for  a  price.3  The 
familiar  use  of  the  institution  in  illustration,  by  the 
poets,  dramatists,  and  writers  of  Greece,  shows  how 
completely  it  was  interwoven  into  their  entire  system/ 

1  Plutarch's  Lycurgus.  2  Herod,  vi,  137. 

»  Odyssey,  xiv,  H39  ;    xv,  483  ;    xxii,  421 ;  Iliad,  iii,  407  ;  vi,  460  ; 
Eurip.  Hecuba,  442,  479. 
4  The  curious  will  find  a  large  number  of  extracts  and  illustrations| 


Ix  HISTORICAL   SKETCH   OF   SLAVERY. 

The  legitimate  use  of  these  by  the  historian,  is  beauti- 
fully defended  by  M.  Wallon :  "  Car  les  muses  sont 
filles  de  la  memoire  (Mne'mosyne)  et  dans  ces  premiers 
temps,  fideles  si  leur  origine,  elles  puisent  aux  traditions 
nationales  le  sujet  de  leurs  chants."1 

The  Hellenes  were  not  the  earliest  inhabitants  of 
Greece.  The  Ante-Hellenic  period,  however,  is  so 
legendary,  as  to  be  almost  fabulous.  Even  the  name  of 
the  people,  Pelasgi,  is  said,  and  believed  by  many,  to  be 
without  a  corresponding  race,  in  fact,  and  those  who 
are  said  to  be  their  descendants,  occupied,  in  Ancient 
Greece,  an  inferior  position  in  society.2  We  may,  there- 
fore, well  doubt  the  statement  that  there  ever  was  a 
period  in  which  the  Hellenes  did  not  practise  and  recog- 
nize slavery.  The  barbarous  aboriginal  inhabitants 
formed  too  convenient  a  material  to  be  disregarded  by 
their  superiors ;  and  the  right  to  and  practice  of  en- 
slaving the  conquered,  were  recognized  by  all  the  sur- 
rounding countries.  These,  of  all  others,  saw  a  wider 
difference  between  themselves  and  barbarians,  and  were 
the  least  likely  to  doubt  the  right  or  discourage  the  prac- 
tice of  enslaving  barbarians.  Certain  it  is,  that  from  the 
earliest  period  of  their  authentic  history,  we  find  conquest 
a  fruitful  source  of  slavery  among  the  Greeks.3  An  in- 
telligent French  writer  concludes,  after  a  full  investiga- 
tion, that  the  critic  may  rightfully  determine  that  slavery 
existed  in  Greece  prior  to  that  time  at  which  we  have 
the  evidence  to  demonstrate  its  presence.4  So  deeply  im- 

collected  by  the  research  and  industry  of  Mr.  Fletcher,  in  his  Studies  on 
Slavery,  p.  516,  et  seq. ;  See  Eurip.  Hecuba,  442;  Troades,  186,  282; 
Plautus,  Casina.  Captivi ;  Aristophanes,  Plutus,  et  passim  ;  Sophocles, 
Trachiniffi.  '  De  1'Esclavage  dans  1'Antiquite,  torn,  i,  58. 

*  Grote's  History  of  Greece,  vol.  ii,  261,  et  seq.,  and  authorities  cited. 
8  Xen.  Cyr.  vii,  5,  \  73.    Homer  gives  a  graphic  description  of  the 

taking  of  a  city  and  its  consequences  in  the  address  of  the  old  knight, 
Phosnix.  Iliad,  ix,  585-600. 

*  Wallon,  de  1'Esclavage  dans  l'Antiquit<3,  torn,  i,  p.  56. 


SLAVERY  IN  GREECE.  Ixi 

pressed  was  slavery  upon  the  Grecian  institutions  in 
the  heroic  age,  that  we  find  it  transplanted  among  the 
Gods,  and  Apollo  serving  as  the  slave  of  Admetus,  as  a 
penalty  for  the  murder  of  the  Cyclops.1  And  Hercules, 
Bold  to  Omphale  a  barbarian,  completes  a  year  in  her  ser- 
vice. Enraged  at  this  indignity,  he  seeks  revenge  upon 
Eurytus,  whom  he  looked  to  as  the  cause,  and  taking 
an  advantage  of  Iphitus,  the  son,  while  his  eye  is  turned 
in  another  direction,  hurls  him  from  a  towering  height. 
Jupiter,  incensed  at  this  cowardly  trick,  condemned 
Hercules  again  to  slavery.2  In  a  fragment  of  Panyasis, 
he  says,  "  such  (slavery)  was  the  lot  of  Ceres,  of  the 
illustrious  blacksmith  of  Lemnos,  of  Neptune,  of  Apollo, 
of  the  terrible  Mars,  bending  under  the  fatal  will  of  his 
father."3 

In  the  Grecian  mythology,  Mercury  was  the  peculiar 
God  of  the  slave,  who  protected  and  partook  of  hia 
thefts.4 

The  sources  of  slavery  among  the  Greeks  were  the 
same  as  those  we  have  noticed  among  other  nations, 
until  the  celebrated  Seisachtheia  (SsiaaxOsca)  or  Relief 
Law  of  Solon,  the  insolvent  debtor  was  the  slave  of  his 
creditor.  This  act  forbade  the  pledge  of  the  person  as 
a  security  for  the  debt,  released  many  debtors,  who  were 
suffering  the  penalty  of  slavery,  and  even  made  provi-  Jl 
sion  for  the  repurchasing  and  bringing  back  in  liberty, 
many  insolvent  debtors,  who  had  been  sold  and  exported. 
Solon  farther  forbade  the  sale  by  parents  of  their  chil- 
dren as  slaves,  except  in  the  case  of  an  unchaste  daugh- 
ter.5 The  policy  of  their  laws  from  that  time  discou- 

1  Eurip.  Alcestis,  i,  2. 

2  Sophocles,  Trachiniae,  225-293  ;  yEschylus,  Agam.  1020. 
8  Quoted  in  Wallon,  torn,  i,  81. 

4  Aristoph.  Plutus,  1140,  et  seq.     Quoted  in  "Wallon,  torn,  i,  p.  300. 

5  Grote's  Hist,  of  Greece,  vol.  iii,  p.  98  ;  Plutarch's  Life  of  Solon.    In 
the  other  Grecian  states,  except  Athens,  the  sale  of  children  into  slavery 
continued.    Wallon,  i,  158. 


Ixil  HISTORICAL   SKETCH   OF   SLAVERY. 

raged  the  enslavement  of  Greeks,  and  looked  to  the 
barbarians  alone  for  a  supply,1  although,  in  some  states, 
the  debtor  still  remained  the  subject  of  sale.3 

Expeditions  were  fitted,  and  wars  undertaken  fre- 
quently, merely  for  the  purpose  of  procuring  slaves.3 
Such  expeditions  filled  up'  the  leisure  hours  of  the 
Greeks  during  the  siege  of  Troy.  The  stealing  of 
beautiful  girls  and  boys  for  the  purpose  of  enslaving 
them  was  a  common  practice  with  the  maritime  nations. 
The  touching  story  of  the  swineherd  Eumseus  told 
Ulysses,  illustrates  this  truth.4  Piracy  formed  also  a 
continual  source  of  supply,  which  kept  even  pace  with 
the  demand.5 

The  children  of  female  slaves  followed  the  condition 
of  their  mother,  even  if  the  master  was  their  acknow- 
ledged father.  An  excepted  case  was  that  of  a  master's 
living  with  a  female  slave  as  -aMax^  or  concubine,  in 
which  event  the  children  were  free.6  Ulysses  was  the 
offspring  of  such  a  connection,  and  he  gratefully  ac- 
knowledged that  his  father  honored  him  equally  with 
his  legitimate  sons.7  Though  free,  their  position,  how- 
ever, was  precarious,  and  depended  more  upon  the  will 
and  power  of  the  father  than  any  fixed  rights.  Hence, 
Tecmessa  appealed  to  Ajax  in  behalf  of  her  son,  the 
issue  of  such  concubinage,  in  the  event  of  his  dying 
during  the  son's  tender  years,  lest  she  "  should  eat  the 

1  See  the  speech  of  Callicratidas,  Xen.  Hellen.  vi,  14. 

2  Isocr.  Platocens,  19  ;  Becker's  Charicles,  272  ;  Smith's  Diet,  of  G.  & 
R.  Antiq.  "  Servus"  (Greek).     In  the  intestine  wars  among  the  different 
Greek  nations,  and  even  in  the  civil  wars  in  the  several  states,  the  en- 
slavement of  the  vanquished  was  enforced.   See  Wallon,  i,  162,  163,  and 
the  authorities  cited. 

3  Odyssey,  xiv,  250 ;  Sophocles,  Trachinias,  253,  et  seq.      Aristotle 
maintained  the  justice  of  such  wars.    Polit.  iv,  7  ;  xiii,  14. 

4  Odyssey,  Bk.  XV,  375,  500.     Plautus,  Captivi. 

6  Wallon,  i,  166,  et  seq. ;  Smith's  Diet.  "  Servus"  (Greek). 

6  Becker's  Charicles,  Excursus  to  Scene  vii,  p.  27  ;  Wallon,  i,  157. 

7  Odyssey,  xiv,  200-210. 


SLAVERY   IN   GREECE.  Ixiii 

bread  of  slavery  with  her  son."1  This  concubinage  did 
not  emancipate  the  mother.  In  the  same  appeal  Tec- 
messa  acknowledges  her  state  of  slavery.2 

Another  source  of  slavery  among  the  Greeks  was  from 
the  sale  of  strangers,  residents  in  the  city,  Metics,  who, 
upon  failure  to  discharge  their  obligations  to  the  state, 
or  upon  fraudulently,  by  marriage,  introducing  them- 
selves into  the  family  of  a  citizen,  were  condemned  to 
slavery.3 

Sometimes  slavery  was  voluntarily  submitted  to  as  an 
expiation  for  an  offence,  especially  homicide.4 

There  were  two  kinds  of  slavery  among  the  Greeks, 
which  may  be  denominated  agrestic,  attached  to  the 
land,  or  serfs,  and  domestic  or  personal  servants.  The 
former  consisted  chiefly  of  the  conquered  inhabitants  of 
a  country,  who  were  first  made  the  slaves  of  the  com- 
munity, and  were  retained  in  the  possession  of  the  con- 
quered territory.5  Among  conquered  nations,  however, 
there  was  a  difference  in  the  degree  of  servitude,  arising 
from  the  circumstances  under  which  the  conquest  was 
effected,  and  the  degree  of  force  used  therein.  Of  some, 
tribute  only  was  required,  and  an  acknowledged  state  of 
dependence,  with  a  liability  to  answer  the  calls  of  the 
conquerors  for  men  and  munitions  of  war.  Such  were 
admitted  to  bear  arms  in  the  wars,  and  sometimes  to 
hold  offices,  though  their  condition  was  still  inferior  to 
that  of  citizens.  In  Laconia,  these  were  termed  Perioiki, 
occupying  a  middle  rank  between  the  freemen  and  the 
Helots.6 

In  other  cases,  when  the  resistance  was  obstinate,  or, 
after  subjection,  the  vanquished  were  rebellious,  a  more 

1  Sophocles,  Ajax,  485-518.  2  Ibid. 

8  Wallon,  i,  160.  4  Wallon,  i,  63. 

6  Wallon,  torn,  i,  56  ;  Smith's  Diet.  "  Servus"  (Greek). 

6  Wallon,  torn,  i,  94,  et  seq. ;  Grote's  Hist,  of  Greece,  vol.  ii,  364.  The 
original  meaning  of  the  word  xspioixui  is,  "  surrounding  neighbor  states," 
and  is  thus  used  by  Thucydides,  i,  17,  by  Isocrates,  De  Pace,  p.  182. 


1X1V  HISTORICAL   SKETCH   OF   SLAVERY. 

rigorous  servitude  was  enforced.  Such  were  the  Helots 
of  Sparta,  pure  slaves,  having  no  rights  and  allowed  but 
few  privileges  ;  restricted  from  bearing  arms,  except  as 
attendants  of  their  masters,  or  even  from  self-defence. 
The  tradition  was,  that  they  derived  their  name  from 
the  inhabitants  of  Helos ;  who,  refusing  to  accept  the 
same  terms  with  the  other  Perioiki,  were  reduced  to  a 
more  severe  bondage,  and  this  gave  an  appellation  to 
this  class  of  slaves.1  The  Helots  were  the  property  of 
the  state,  though  their  services  were  given  to  indivi- 
duals. The  state  reserved  the  right  of  emancipating 
them,  and  sometimes  exercised  it.2  They  constituted 
the  rustic  population  of  Laconia ;  sometimes  working 
the  lands  for  a  fixed  rent,  and  sometimes  under  the  im- 
mediate direction  of  a  master.3  By  reason,  however,  of 
their  being  the  slaves  of  the  state,  they  were  subject  to 
the  control  and  order  of  every  citizen.4  The  rent  that 
he  paid  for  the  land  was  fixed  by  the  state :  a  certain 
portion  of  barley  and  a  proportional  of  oil  and  wine.5 
Being  the  slave  of  the  state,  the  Helot  was  never  sold, 
especially  out  of  the  country ;  and  feeling  the  pride  of 
Grecian  birth  and  descent,  frequently  on  the  field  of 
battle  won  his  freedom.  They  were  permitted  to  pos- 
sess a  small  amount  of  property,  how  much  is  not  cer- 
tain.6 These  circumstances  gave  them  a  marked  supe- 
riority over  the  barbarian  slave  population  of  Athens 
and  Chios ;  while,  at  the  same  time,  they  rendered  them 
more  rebellious  and  unruly,  requiring  for  their  subjec- 
tion a  greater  degree  of  rigor.  Instances  of  great 
cruelty  and  inhumanity  are  recorded  of  the  Spartans,  in 

1  Smith's  Diet.  "  Helotes."  A  more  satisfactory  definition  is  from 
the  obsolete  verb,  e'Atw,  to  take  or  conquer.  See  Wallon,  torn,  i,  100- 
101  ;  Grote,  vol.  ii,  374.  2  Smith,  as  above ;  Wallon,  torn,  i,  103. 

8  Smith,  as  above ;  Grote's  History  of  Greece,  vol.  ii,  373. 

4  Wallon,  torn,  i,  103. 

s  Plutarch,  Lye.;  Wallon,  i,  103;  Smith,  as  above. 

6  Grote's  Hist.  vol.  ii,  375. 


SLAVERY   IN   GREECE.  IxV 

their  treatment  of  the  Helots.  Some  of  them  bear 
marks  of  exaggeration,  which  justify  incredulity ;  such 
as  the  story  of  the  disappearance  of  two  thousand  of 
them  immediately  after  emancipation.  The  truth  seems 
to  be,  that  they  sought  to  break  the  spirit  of  their  un- 
ruly slaves  by  exhibitions  of  ostentatious  scorn ;  and,  at 
the  same  time,  to  inspirit  their  youth  with  a  detestation 
of  the  degradation  of  slavery,  and  an  unconquerable 
determination  to  preserve  their  own  status  as  freemen'. 
Such  was  the  twofold  motive  for  exhibiting  them  to  their 
youth  in  a  state  of  drunkenness.  The  result  of  such 
teaching  would,  naturally,  lead  to  cruelty  from  the  youth 
to  the  slaves ;  and  the  absence  of  a  specific  master  to 
protect  them  (being  slaves  of  the  state),  frequently,  with- 
out doubt,  subjected  the  unfortunate  Helot  to  cruel  op- 
pressions.1 

The  other  states  of  Greece  had  their  agrestic  slaves, 
as  well  as  Athens  and  Sparta.  The  Penestae  of  Thes- 
saly  resembled  very  much  the  Helots  of  Sparta,  their 
condition  being  generally  superior.  They  were  slaves 
of  particular  masters,  and  not  of  the  state.  They  are 
supposed  to  have  been  the  descendants  of  the  aboriginal 
inhabitants,  and,  like  the  Helots,  were  more  ungovern- 
able than  the  purchased  slaves  of  Athens.2 

So  the  Klarotse,  or  Perioiki,  of  Crete,  according  to 
Aristotle,  occupied  a  similar  position  with  the  Helots  of 
Sparta.  Some  of  them,  however,  were  the  property  of 
particular  masters,  while  others  belonged  to  the  state. 
The  latter  worked  the  public  lands,  and  attended  the 
public  flocks — the  principal  source  of  their  public  reve- 
nue— attended  at  the  public  feasts,  and  performed  similar 
duties  on  public  occasions.  Even  those  belonging  to 
particular  masters,  were  generally  occupied  with  rural 

1  Grote's  Hist  vol.  ii,  375  ;  Smith's  Diet  "  Helotes ;"  Wallon,  i,  104 

2  Smith's  Diet.  "Penestae." 

E 


Ixvi  HISTORICAL   SKETCH   OF   SLAVERY. 

labors.  The  menial  duties  of  domestics  were  performed 
by  purchased  slaves.1 

At  Corinth,  also,  we  find  the  agrestic  slaves.3  So  at 
Argos,  Epidaurus,  Sicyone,  and  at  Delphos.3 

In  almost  every  Grecian  state  we  find  the  public 
slaves.  Those  at  Athens  were  termed  "  Demosii."  They 
were  educated  to  fill  subordinate  offices,  such  as  heralds, 
clerks,  &c.  Sometimes  they  formed  a  part  of  the  city 
guard,  and  preserved  order  in  public  assemblies.  It  is 
supposed  that  these  possessed  superior  legal  rights  to 
the  private  domestic  slave.4 

In  every  portion  of  Ancient  Greece  we  find  the  do- 
mestic slave.  In  Sparta  they  were  selected  from  the 
Helots.5  In  most  of  Greece  they  were  purchased  slaves, 
generally  barbarians,  and  bought  in  the  slave-markets. 
These  markets  were  regularly  opened ;  the  supply,  from 
wars,  commerce,  piracies,  and  kidnapping,  being  ample. 
The  largest  and  most  remarkable  were  held  at  Chios 
and  at  Athens.6  In  these,  the  purchaser  could  supply 
himself  with  slaves  from  different  countries  and  of  dif- 
ferent qualities,  according  to  the  service  for  which  they 
were  bought.  Their  very  names  indicated  their  different 
origin.7  Those  of  the  North  were  large,  rough,  and 
sometimes  unruly.  Those  from  Egypt  were  accustomed 
to  burdens,  and  were  very  enduring.  From  Egypt  prin- 
cipally came  the  supply  of  negroes.  These  were  prized 
for  their  color,  were  kept  near  the  persons,  and  were 
considered  slaves  of  luxury.8  The  prices  of  slaves  varied 

1  Grote's  Hist.  vol.  ii,  364;  Wallon,  torn,  i,  121-125. 

2  xwoipuAov,  literally  race  of  dogs  ;  "Wallon,  i,  127. 

3  Ibid.  130.  4  Smith's  Diet,  verb,  "  Demosii." 
6  Grote's  Hist,  of  Greece,  vol.  ii,  375. 

6  Becker's  Charicles,  272.     Both  at  Athens  and  at  Rome  the  market 
took  its  name  from  the  stone  on  which  the  sale  was  made. 

7  Wallon,  i,  169,  et  seq. ;  Smith's  Diet.  "  Servus." 

8  Wallon,  i,  169;   Theophe.  Char,  xxi ;  Becker's  Charicles,  Exc.  1, 
and  Scene  vii,  275.     See  Indigenous  Races  of  Man,  pp.  190,  191,  for  cuts 
of  Etruscan  vases,  showing  the  perfect  negro  face  and  head. 


SLAVERY   IN    GREECE.  Ixvii 

very  much,  according  to  their  qualities,  and  the  object 
for  which  they  were  purchased.  Artisans  were  some- 
times very  valuable.  They  never,  however,  reached 
those  exorbitant  rates  which  were  afterwards  paid  for 
them  at  Rome.  They  were  generally  stripped  naked 
when  sold.1 

As  we  have  seen,  the  negro  was  a  favorite  among 
slaves.  The  opposite  color,  "white,"  does  not  seem  to 
have  enjoyed  the  same  favoritism.  According  to  Plu- 
tarch, in  his  Life  of  Agesilaus,  when  that  king  made  an 
expedition  into  Persia,  he  ordered  his  commissaries,  one 
day,  to  strip  and  sell  the  prisoners.  Their  clothes  sold 
freely,  "but,"  says  the  historian,  "as  to  the  prisoners 
themselves,  their  skins  being  soft  and  white,  by  reason 
of  their  having  lived  so  much  within  doors,  the  specta- 
tors only  laughed  at  them,  thinking  they  would  be  of  no 
service  as  slaves."  Eunuchs  were  common  among  the 
slaves  in  Greece.2 

In  the  later  days  of  Greece,  it  denoted  poverty  to  be 
seen  without  an  attendant.  The  number  of  these  varied 
according  to  rank  and  wealth,  but  never  was  so  great  as 
at  Rome.  In  Greece,  slaves  were  looked  to  as  a  source 
of  income  and  revenue ;  but  in  Rome,  merely  as  min- 
istering to  their  pride  and  luxury.  No  individual  in 
Greece  ever  swelled  out  the  number  of  his  slaves  to  the 
enormous  limit  common  at  Rome.  But  the  most  of  the 
Grecian  slaves  were  artisans,  or  skilled  in  some  way  to 
be  profitable  to  the  master.3  Hence  there  were  no 
learned  slaves,  as  at  Rome;  nor  slaves  kept  for  mere 
pleasure,  as  actors,  dancers,  musicians.  When  attend- 

1  Smith's  Diet.  "Servus"  (Greek);  Xen.  Mem.  ii,  5,  §2;  Becker's 
Charicles,  as  above.  See  Wallon,  torn,  i,  197,  et  seq. 

*  Herod,  viii,  105. 

3  See  Becker's  Charicles,  as  above ;  Smith's  Diet.  "  Servus ;"  Arist.  De 
Repub.  ii,  3,  iii,  4  ;  Aristoph.  Eccl.  593 ;  Xen.  Mem.  i,  7,  2 ;  Plato,  Leg. 
v,  742,  vii,  806.  When  Phocion's  wife  had  only  one  female  slave  to  attend 
her,  it  was  the  subject  of  remark  at  the  theatre.  Plutarch's  Phocion. 


Ixviii  HISTORICAL   SKETCH   OF   SLAVERY. 

ing  his  master  in  the  streets,  the  slave  preceded,  and  did 
not  follow.  The  reason  for  this  custom  was  the  frequent 
escapes  of  fugitive  slaves.1  More  than  20,000,  we  are 
told,  escaped  at  one  time  during  the  occupation  of  De- 
celea  by  the  Lacedemonians.*  The  master  had  the  right 
to  pursue  and  recapture  the  fugitive,  and  the  penalty 
was,  frequently,  branding  in  the  forehead,  to  prevent  a 
repetition  of  the  offence.3  The  delivery  of  fugitive 
slaves  was  frequently  a  subject-matter  for  treaties  be- 
tween the  different  states/  In  the  later  days  of  the 
republic,  there  were  offices  where  insurance  was  taken 
to  respond,  in  the  event  of  the  flight  of  the  slave.5 

The  number  of  female  slaves  about  the  house  was  not 
proportionally  great,  many  of  their  offices  being  per- 
formed by  men.6  They  were  under  the  direction  of  a 
stewardess,  as  the  men  were  under  a  steward.  The 
slaves  on  a  farm  were  controlled  entirely  by  an  overseer; 
the  master  and  owner  residing  generally  in  the  city.7 

The  number  of  slaves  in  Greece  was  very  large.  Their 
imperfect  census,  however,  leaves  the  exact  number  and 
proportion  doubtful.  The  better  opinion  is,  that  they 
were  three  or  four  times  the  number  of  the  free  popula- 
tion.8 

The  condition  of  the  Greek  slave  was  much  more 
tolerable  than  that  of  the  Koman.  He  was  much  more 
familiar  with  his  master  than  the  Koman.  Plutarch's 

1  Becker's  Charicles,  as  above ;  Lucian,  Amor.  10. 

•  Thucyd.  vii,  27. 

3Xen.  Mem.  ii,  10;  Plat.  Protag.  p.  310;  Smith's  Diet.;  Becker's 
Charicles,  279;  Athenaeus,  vi,  225;  Aristoph.  The  Birds,  758;  Wallon, 
torn,  i,  317.  4  Thucyd.  iv,  118. 

6  Smith's  Diet.  "  Servus"  (Greek).  Antigenes,  of  Rhodes,  was  the 
first  to  establish  such  an  insurance.  Ibid. 

6  Becker's  Charicles,  275. 

7  Xen.  Econ.  xii,  2 ;  ix,  11 ;  Aristot.  De  Repub.  i,  7 ;  Wallon,  i,  310. 

8  Smith's  Diet.  "  Servus"  (Greek) ;  Becker's  Charicles,  273.   The  sub- 
ject is  elaborately  considered  by  Wallon,  Histoire,  &c.,  torn,  i,  220,  et 
seq. 


SLAVERY   IN   GREECE.  IxiX 

anecdote  concerning  "  Garrulity,"  evidences  the  latter 
thus :  Piso  invited  Clodius  to  dine,  a  slave  being  the 
bearer  of  the  invitation ;  the  dinner  was  delayed  by  the 
non-arrival  of  Clodius.  At  last  the  host  inquired  of  the 
slave  if  he  was  sure  he  invited  him.  The  reply  was, 
"Yes."  "Why  doesn't  he  come  then?"  "Because 
he  declined  the  invitation."  "  Why  did  you  not  tell  me 
that  before  ?"  "  Because  you  never  asked  me  about  it," 
was  the  slave's  reply.1  Euripides  represents  the  depriva- 
tion of  the  liberty  of  speech  as  the  greatest  of  ills,  and 
adds,  that  this  is  the  condition  of  a  slave.2  While,  how- 
ever, the  legal  right  was  absent,  the  privilege  was  ex- 
tended almost  ad  libitum  to  the  Athenian  slave  at  least.3 
Plato  objects  to  this  practice  as  evil,  and  adds,  "  The 
address  to  a  slave  ought  to  be  entirely  or  nearly  a  com- 
mand; nor  should  persons  ever  in  any  respect  jest  with 
them,  whether  males  or  females,  acts  which  many  per- 
sons do  very  foolishly  towards  their  slaves,  and  by 
making  them  conceited  render  it  more  difficult  during 
life  for  their  slaves  to  be  governed,  and  for  themselves 
to  govern."4 

The  result  of  this  kind  treatment  was  a  correspond- 
ing fidelity  on  the  part  of  the  slave.  Thus,  Plato  bears 
witness,  that  "  many  slaves,  by  conducting  themselves 
with  respect  to  all  virtue,  better  towards  some  persons 
than  brothers  and  sons,  have  preserved  their  masters 
and  their  possessions,  and  the  whole  of  their  dwellings." 

"  Other  masters,"  he  says,  "by  frequent  use  of  goads 
and  whips,  cause  the  very  souls  of  their  servants  to  be- 
come slavish."3 

1  De  Garrul.  18 ;  Plaut.  Stech.  iii.       2  The  Phenician  Virgins,  391,  3. 

3  Becker's  Charicles,  Exc.  Sc.  vii,  276  ;  Dem.  Phil.  iii.    The  comedies 
of  Aristophanes  abound  with  confirmations  of  this  fact.     See  especially 
The  Frogs,  51,  et  passim,  Pseudolus;  see  also  Terence,  Andr.  vi,  676; 
see  also  Plautus,  Casina  (Prologue),  Epidicus. 

4  De  Leg.  Bk.  VI,  ch.  xix,  Burges's  Trans. 
6  De  Leg.  Bk.  VI,  ch.  xix. 


1XX  HISTORICAL   SKETCH   OF   SLAVERY. 

Occasionally  the  slaves  were  allowed  feasts  and  holidays, 
at  which  times  they  enjoyed  unrestrained  liberty.  The 
master  frequently  furnished  the  feast  luxuriously.1  There 
were  also  certain  public  feasts,  in  which  the  slave  parti- 
cipated freely  with  his  master ;  such  were  the  Anthes- 
teria  feasts  of  Bacchus  ;  at  the  conclusion  of  which  the 
herald  proclaimed  :  "  Depart,  ye  Carian  slaves,  the  fes- 
tivals are  at  an  end."2  So,  even  at  Sparta,  during  the 
feast  of  Hyacinthia,  the  slaves  were  admitted  to  the 
same  table  and  sports  with  the  masters.3  In  Thessaly, 
during  the  feasts  of  Jupiter  Pelorius,  the  masters  ex- 
changed places  with  them  and  served  them.  During 
the  feasts  of  Saturn,  in  Greece  as  well  as  at  Rome,  un- 
restrained liberty  was  allowed  to  all.'4 

The  affection  of  the  master  frequently  followed  the 
slave  to  the  grave ;  and  more  than  once  they  lay  in  a 
common  sepulchre.  The  inscriptions  on  several  monu- 
ments at  Athens  testify  to  the  high  esteem  and  sincere 
grief  of  the  surviving  master.5  Euripides  gives  us  a 
touching  proof  of  this  affection  in  the  death-scene  of 
Alcestis.  "  All  the  servants  wept  throughout  the  house, 
bewailing  their  mistress,  but  she  stretched  out  her  right 
hand  to  each,  and  there  was  none  so  mean  whom  she 
addressed  not,  and  was  answered  in  return."6 

The  life  and  person  of  the  slave  were  protected  by 
law  at  Athens,  and  an  action  lay  by  the  master  for  in- 
jury done  to  his  slave.7  If  the  slave  was  cruelly  treated 
by  his  master,  he  could  take  refuge  in  the  Thescion,  or 

1  Plautus,  Stechus,  Act  III,  Sc.  I. 

8  Potter,  Gr.  Ant.  vol.  i,  p.  422,  et  seq. ;  Wallon,  torn,  i,  p.  299. 
3  Wallon,  torn,  i,  299,  300.  4  Wallon,  torn,  i,  300. 

6  Bceckh.  P.  II,  Inscrip.  Atticse,  Cl.  XI,  Nos.  939,  1002,  1890,  1891, 
1792,  2009,  2327,  2344;  Wallon,  torn,  i,  301. 

6  Alcestis,  175,  et  seq. ;  see  also  Odyssey,  xvii,  33;  xv,  363,  et  seq.; 
xxiv,  226  ;  Iphigenia  in  Aulis,  passim,  and  the  old  nurse  in  Media. 

7  Xen.  De  Rep.  Ath.  i,  10  ;  -^Eschin.  in  Timarch,  41 ;  Demosth.  in  Mid. 
529. 


SLAVERY   IN   GREECE.  Ixxi 

at  some  other  altar,  and  then  the  master  was  forced  to 
sell  him.1  The  reason  is  given  by  the  poet :  "  The  seat 
of  the  Gods  is  a  common  defence  to  all  !"2  In  some 
cases  the  master  lost  all  right  of  property  upon  the 
slave's  taking  refuge.  Thus  the  temple  of  Hercules, 
at  Canope,  kept  possession  of  all  slaves  seeking  an  asy- 
lum there.  So  that  of  Hebe  at  Phlius,  gave  liberty  to 
the  fugitives,  suspending  their  chains  upon  the  boughs 
of  the  sacred  trees.3  For  the  greater  protection  of  the 
slave,  who  could  not  always  reach  the  asylum,  the  mere 
presence  with  him  of  a  consecrated  relic,  was  an  amulet 
and  a  charm  against  the  master's  cruelty:  such  were 
crowns  of  laurel  from  the  temple  of  Apollo,  and  some- 
times small  bands  or  mere  strings  worn  around  the  fore- 
head.4 

The  homicide  of  a  slave  at  Athens,  by  any  one  other 
than  the  master,  was  punishable  in  the  same  manner  as 
that  of  a  freeman.5  With  the  master,  the  punishment 
was  exile  and  religious  expiation.6  Plato,  in  his  laws, 
proposes  for  the  former,  indemnity  to  the  master  for  the 
loss  of  the  slave,  and  religious  purification.  In  the  case 
of  the  master,  religious  purification  solely.7 

Slaves  were  not  considered  as  persons  in  the  Greek 
law.  Marriage  was  not  recognized  between  them, 
although  a  kind  of  contubernial  relation  existed.  This 
was  entered  into  with  the  same  solemnity,  and  some- 
times with  the  same  feasting,  as  a  regular  marriage. 
Hence,  in  the  prologue  to  Casina,  the  question  is  asked, 
"  Are  slaves  to  be  marrying  wives,  or  asking  them  for 
themselves,  a  thing  that  is  done  nowhere  in  the  world  ? 

1  Becker's  Char.  Exc.  Sc.  vii,  277  ;  see  note  33,  in  Appendix  to  Wallon, 
torn,  i,  p.  482. 

2  Eurip.  Heracl.  260  ;  see  also  Androm.  260. 
8  Herod,  ii,  113;  Pausan.  ii,  xiii,  4. 

4  Wallon,  torn,  i,  313;  Aristoph.  Plut.  20. 

6  Dem.  in  Midias ;  Eurip.  Hec.  288. 

6  Wallon,  torn,  i,  p.  315.  »  Bk.  IX,  ch.  viii. 


Ixxii  HISTORICAL   SKETCH    OF   SLAVERY. 

But  I  affirm  that  this  is  done  in  Greece  and  at  Carthage, 
and  in  our  own  country,  in  Apulia."1 

The  slave  could  not  appear  as  a  suitor  in  the  courts, 
except  in  the  single  case  of  a  suit  for  his  liberty,  when  he 
appeared  by  a  guardian.3  He  was  sometimes  permitted 
to  testify  in  the  courts,  but  always  under  torture — a  pro- 
ceeding which  shocks  our  sense  of  justice  and  humanity, 
but  was  approved  and  defended  by  the  orators  of  that 
time.  Neither  age  nor  sex  was  a  protection  against  this 
cruelty,  and  if  the  master  refused  to  permit  it,  he  was 
himself  subjected  to  punishment.3  Though  deprived  by 
law  of  any  right  of  property,  still  the  slave  was  allowed 
by  usage  his  peculium.* 

Wherever  in  Greece  slaves  were  private  property,  they 
were  the  subject  of  sale.  They  frequently  constituted 
a  part  of  the  dowry  of  a  daughter  upon  her  marriage.5 

The  manual  labor  was  almost  entirely  performed  by 
slaves.  The  working  of  the  mines,  of  the  oars  of  the 
vessels,  of  the  fields,  of  the  machinery,  was  chiefly  per- 
formed by  them.6  It  is  said,  that,  when  from  old  age 
they  became  useless,  they  were  abandoned  in  their 
misery ;  but  I  have  not  been  satisfied,  from  the  evidence, 
that  this  allegation  is  well  founded.7 

It  is  unquestionably  true,  that  the  laws  governing 
slavery  were  more  rigid  than  the  practices  of  the  com- 
munity. Wallon,  speaking  on  this  subject,  says,  "  Mais 
la  loi  est  moins  puissante  que  les  moeurs,  et  les  mceurs 
grossieres  encore,  n'dtaient  point  commune'ment  cruel- 
les."8  It  is  also  true,  that  generally  the  slaves  were 

1  Plautns,  Casina ;  Wallon,  torn,  i,  290. 

2  Wallon,  torn,  i,  324. 

»  Wallon,  Ibid. ;  Plato,  De  Leg.  xi,  937 ;  Plautns,  Truculentus,  Act.  IV, 
Sc.  iii :  Dem.  in  Onet,  i,  874. 

4  Wallon,  torn,  i,  293 ;  Plautus,  Aulul.  Ill,  Sc.  v,  422. 

5  Clytemnestra's  dowry;  in  Iphigenia  in  Aulis;  Eurip. 

6  Beckers  Charicles,  280. 

7  Wallon,  torn,  i,  332. 

8  Histoire  de  1'Esclavage,  &c.,  torn,  i,  81,  291,  334. 


SLAVERY   IN   GREECE. 

coarse  and  vulgar,  incapable  of  noble  feelings,  their  chief 
praise  being  their  freedom  from  crime.1 

For  offences  committed  by  the  slave,  corporal  punish- 
ments alone  were  inflicted.  If  the  offence  was  worthy 
of  death,  it  could  be  inflicted  only  by  process  of  law, 
and  not  by  the  friends,  as  the  avengers  of  blood,  nor  by 
the  master.2 

Manumission  of  the  slave  was  allowed  in  all  the  Gre- 
cian states.  The  effect  of  this  manumission  differed 
according  to  the  manner  and  circumstances  attending  it. 
The  manumitted  slave,  at  Sparta,  did  not  become  a  citi- 
zen thereby,  nor  was  he  even  entitled  to  the  privileges 
of  a  Perioikus  without  a  special  grant  for  this  purpose, 
from  a  Perioikic  township.3  At  Athens  he  came  under 
a  double  tutelage.  He  occupied,  in  the  state,  the  posi- 
tion of  a  metic,  or  alien  resident.  As  to  his  former 
master,  he  became  his  client,  and  lived  under  his  patron- 
age. His  condition  was  intermediate  the  slave  and  the 
citizen,  tending  rather  to  the  former.  In  order  to  be- 
come a  citizen,  he  must  be  adopted  by  the  vote  of  an 
assembly  of  at  least  six  thousand  citizens.4 

It  is  supposed,  by  some,  that  the  slave  could  force  the 
master  to  manumit  him  upon  the  payment  of  a  certain 
price.  The  authorities  cited  in  favor  of  this  view,  are 
not  sufficient  to  warrant  this  conclusion,  in  the  silence 
of  so  many  other  writers.5 

1  Becker's  Charicles,  Exc.  Sc.  vii,  p.  279. 

8  Becker's  Cnaricles,  Exc.  Sc.  vii,  p.  278,  gives  a  full  description  of 
the  various  fetters  and  machines  used.  Wallon,  i,  316,  et  seq. ;  Eurip. 
Hec.  287,  288. 

8  Grote's  Hist.  vol.  ii,  379 ;  Dion.  Chrysos.  Orat.  xxxvi,  p.  448,  b. 

4  Wallon,  i,  345,  350.    There  is  some  doubt  whether  even  then  he  was 
entitled  to  the  full  privileges  of  citizenship ;  351-2.    The  privilege  seems 
to  have  been  voted  so  freely  and  frequently  as  to  have  been  a  matter  of 
complaint ;  353.     See  also  Smith's  Diet.  "Libertus." 

5  Plautus.     The  expression  of  Olympic,  "  Why  do  you  frighten  me 
about  liberty  ?    Even  though  you  should  oppose  it,  and  your  son  as  well, 
against  your  will  and  in  spite  of  you  both,  for  a  single  penny,  I  can  be- 
come free."     Act.  II,  Sc.  v. ;  Dion.  Chrysos.  xv,  240,  241. 


CHAPTER  VI. 

SLAVERY  AMONG   THE   ROMANS. 

IN  the  earlier  days  of  Rome,  during  the  reign  of  her 
kings,  and  the  beginning  of  the  republic,  slavery,  though 
it  existed,  occupied  an  unimportant  place  in  the  political 
and  domestic  economy.  The  Romans,  in  this  heroic 
age,  were  a  rude,  martial  people,  their  greatest  wealth 
being  their  land  (hence  locuples,  a  rich  man),  their  source 
of  revenue  their  flocks  (pascua\  and  their  very  name  for 
money  (pecunia\  having  cattle  for  its  root.1  In  their 
organization,  however,  were  elements  whose  fruits  must 
eventually  be  slavery.  These  elements  were  their  spirit 
of  conquest,  the  unlimited  paternal  power,  and  generally 
that  devotion  to  and  tendency  towards  the  development 
of  the  principle  of  "  power,"  which  formed  the  basis  of 
all  her  institutions,  and  the  secret  of  her  unparalleled 
success.  In  these,  we  find  the  fruitful  sources  of  that 
slavery  which,  in  the  later  days  of  the  republic,  and 
under  the  emperors,  held  in  bondage  so  large  a  portion 
of  the  subjects  of  the  Roman  power.  We  will  consider 
more  minutely  these  sources. 

And  first  of  the  paternal  power.  This  was  without 
parallel  among  civilized  nations.  "  Nulli  enim  alii  sunt 

'Pirn.  Nat.  Hist,  xviii,  3  ;  South.  Quart.  Rev.  vol.  xiv,  Oct.  1848,  art. 
4,  p.  391,  Slavery  among  the  Romans.  This  article  is  supposed  to  be 
from  the  pen  of  Judge  Campbell  of  the  Supreme  Court  of  the  United 
States.  Prom  the  known  ability  and  accuracy  of  its  author,  I  have  not 
hesitated  to  use  it  freely  in  the  preparation  of  this  sketch. 


SLAVERY  AMONG   THE   ROMANS. 

homines  qui  talem  in  liberoshabeantpotestatem,  qualem 
nos  habemus."1  The  potestas  vitse  et  necis,  the  power 
to  expose  the  infant  without  liability  to  punishment,  the 
power  to  sell  into  slavery,  these  were  the  legitimate  ele- 
ments of  the  paternal  power.  It  was  not  until  the  days 
of  Constantine,  that  the  exposure  and  abandonment  of 
infants  became  penal ;  and  a  decree  of  Diocletian  con- 
tains the  first  formal  denial  of  the  power  of  sale,  though 
Troplong  suggests,  that  the  influence  of  Christianity  had 
rendered  the  usage  obsolete  before  that  time.2  Children 
thus  sold  became  absolute  slaves,  without  the  power  of 
redemption,  either  in  the  parent  or  themselves.3  It  was 
otherwise  of  children  exposed.  The  preserver  held  them 
subject  to  reclamation.  Many  instances  are  given  of 
such  reclamations.4 

Another  internal  source  of  slavery  was  the  power  of 
the  debtor,  either  to  sell  himself  directly  into  slavery,  or 
to  pledge  his  body  (nexus)  for  the  payment  of  his  debt. 
In  default  of  payment,  he  was,  after  a  certain  time  of 
imprisonment,  taken  for  three  successive  days  before  the 
praetor,  and  payment  demanded.  He  was  then  ordered 
to  be  sold,  out  of  the  city,  and  became  what  was  called 
addictus.5  Though  the  debtor  thus  lost  his  liberty,  he 
was  not  in  precisely  the  same  situation  with  an  ordinary 
slave.  He  could  not  be  killed  by  his  master,  but  might 
claim  the  protection  of  the  law  as  a  freeman ;  could  in- 
herit property,  and  retain  his  name.  "  Ad  servum  nulla 
lex  pertinet ;  addictus  legem  habet.  Propria  liberi,  quse 
nemo  habet,  nisi  liber,  prsenomen,  nomen,  cognomen, 
tribum,  habet  heec  addictus."6  And  again,  the  slave 
when  manumitted,  became  a  "  libertinus."  The  addictus 

1  Gaius  Inst.  Com.  i,  55. 

2  Influence  du  Chr.  sur  le  droit  civil,  pt.  ii,  ch.  ii. 

3  Wallon,  Esclav.  dans  1'Antiq.  torn,  ii,  p.  21. 

4  Plin.  Epist.  x ;  Suet.  De  Illustr.  Gram.  21 ;  Wallon,  as  above. 
6  Wallon,  ii,  23;  Becker's  "Gallus,"  201. 

6  Quinctil.  vii,  3,  §  27  ;  Arnold's  Hist,  of  Rome,  ch.  xxvi,  p.  224. 


Ixxvi  HISTORICAL   SKETCH   OF   SLAVERY. 

became  a  citizen  (ingenuus}.  The  slave,  without  the  con- 
sent of  his  master,  could  not  obtain  his  liberty.  The 
addictm  solvendo,  by  redeeming  his  price,  could  demand 
his  release.1 

The  purchaser  took  with  the  debtor,  all  that  belonged 
to  him,  and  hence  his  children,  unless  previously  eman- 
cipated from  the  paternal  power,  went  into  slavery 
together  with  their  father.  This  power  of  the  creditor 
over  the  debtor,  caused  frequent  disturbances,  and  was 
much  weakened  by  the  Licinian  laws.2  Its  final  abro- 
gation happened  in  this  wise:  A  young  man,  Caius 
Publilius,  of  extreme  youth  and  beauty,  surrendered  his 
person  for  his  father's  debt,  to  one  Papirius,  a  cruel 
usurer.  He,  excited  with  lust,  approached  the  youth 
with  impure  discourses ;  and  then  by  threats,  and  finally 
by  stripes,  endeavored  to  compel  his  assent.  With  the 
marks  of  the  scourge  upon  him,  the  young  man  rushed 
into  the  street.  A  large  concourse  of  people  gathered 
around  him  in  the  forum,  and  from  thence  in  a  body 
went  to  the  Senate-house.  The  consuls  called  the  Senate, 
and  as  each  senator  went  in  he  was  shown  the  lacerated 
youth  and  told  the  tale  of  cruelty.  The  consequence 
was,  a  law  abolishing  this  penalty  upon  the  insolvent 
debtor.3 

Another  internal  source  of  slavery  was  the  penalty 
for  violating  various  laws.  The  person  who  withdrew 
himself  from  the  census,  or  who  avoided  military  ser- 
vice, the  open  robber,  and  the  free  female  who  main- 
tained sexual  intercourse  with  a  slave,  severally  forfeited 
their  freedom.4  After  the  battle  of  Cannae,  the  dictator, 
pressed  by  the  necessity,  offered  liberty  to  all  such  as 

1  Ibid.  Wallon,  ii,  24,  25.  2  Arnold's  Hist.  ch.  xxvi. 

8  Livy,  Bk.  VIII,  §  28. 

4  So.  Quart.  Rev.  xiv,  393 ;  Wallon,  ii,  31,  32  ;  Gaius,  iii,  189.  The 
latter  was  by  senatus-consultum  Claudianum.  For  its  provisions,  see 
Smith's  Dictionary.  The  master  of  the  slave  might  relieve  her  of  the 
penalty  by  consenting  to  the  cohabitation. 


SLAVERY  AMONG   THE  ROMANS. 

would  enrol  as  soldiers.  Six  thousand  availed  themselves 
of  this  offer.1 

The  most  fruitful  sources  of  slavery  were  the  continual 
wars  of  the  Komans.  The  number  of  captives  brought 
home  into  slavery  appears  sometimes  incredible.  It  be- 
came common  to  release  them  sometimes  upon  the  field 
for  a  ransom.  A  small  tax  was  laid  upon  such  contracts, 
and  the  revenue  derived  therefrom  was  very  considera- 
ble. The  captives  were  divided  with  the  spoils  upon 
the  battle-field,  and  each  soldier  provided  for  the  slaves 
allotted  to  him.  Hence,  it  became  common  for  the 
slave-dealers  (mangones)  to  accompany  the  army  for  the 
purpose  of  purchasing  the  captives.  The  prices  at  such 
times  became  very  trifling,  sometimes  as  small  as  four 
drachmae,  about  seventy-five  cents,  federal  currency. 
Every  nation  of  the  then  known  world,  as  it  bowed  its 
head  before  the  Roman  Eagle,  yielded  at  the  same  time  its 
beauty  and  sinew  to  satiate  the  appetite  and  perform  the 
labor  for  its  victorious  master.  According  to  Josephus, 
97,000  captives  followed  the  destruction  of  Jerusalem. 
Africa,  Asia,  Greece,  Germany,  Gaul,  and  even  Britain, 
brought  their  quota  to  swell  the  mighty  mass.  The 
valley  of  the  Danube  for  a  long  time  furnished  the 
greater  number,  and  gave  the  generic  name  of  Scythian 
and  afterwards  slave  (sclavi)  to  the  whole  class.3 

While  the  Roman  arms  subdued  the  land,  and  de- 
stroyed the  marine  of  all  rival  nations,  yet  Rome  at 
no  period  of  her  history  sought  to  become  powerful 
upon  the  sea.  This  was  then  truly  an  unoccupied  ocean, 
and  numberless  pirates  soon  took  possession  of  the  Medi- 
terranean. The  prisoners  taken  by  these  robbers  of  the 
sea,  were  made  profitable  booty  in  the  Roman  slave- 

1  Livy,  xxiii,  H ;  Wallon,  ii,  31,  2. 

1  Wallon,  ii,  32-40 ;  So.  Quart.  Rev.  xiv,  394 ;  Smith's  Diet,  of  Gr. 
and  Rom.  Ant.  "  Servus,"  Roman  ;  Plautus,  "  Captivi,"  Prologue ; 
Henry's  Hist,  of  Eng.  ii,  p.  225. 


HISTORICAL   SKETCH   OF   SLAVERY. 

market;  and  hence,  piracy  is  to  be  numbered  among 
the  fruitful  sources  of  Roman  slavery.  It  is  said  that 
the  Cilician  pirates  imported  and  sold  as  many  as  10,000 
slaves  in  one  day.1  Men  of  the  highest  rank  in  Rome 
engaged  in  this  honorable  calling  (metier  honorable), 
and  they  constituted  a  powerful  organization,  threaten- 
ing the  security  of  the  citizen  himself.9  Upon  the  land 
they  built  gaols,  in  which  they  secretly  confined  their 
victims,  many  of  whom  were  kidnapped  upon  Roman 
territory.3 

The  tyranny  of  the  Roman  proconsuls  in  levying  and 
collecting  the  tribute  was  another  abundant  feeder  of 
the  slave-market.  Unable  to  respond  to  the  heavy  exac- 
tions, they  borrowed  money  at  exorbitant  usury.  The 
protection  of  the  debtor  in  the  city  was  not  extended  to 
the  provinces,  and  hence,  in  a  few  years,  numbers  were 
sold  into  slavery.  When  Marius  demanded  a  quota  of 
troops  from  the  King  of  Bithynia,  his  reply  was,  that 
his  kingdom  was  depopulated  by  this  process  of  exac- 
tion, extortion,  and  sale/ 

The  children  of  slaves  always  followed  the  condition 
of  the  mother ;  and  hence  the  maxim  of  the  law,  "  servi 
nostri  nascuntur  autfiunt."  The  breeding  of  slaves,  until 
the  latter  days  of  Rome,  was  encouraged,  it  being  cheaper 
to  rear  than  to  buy.  For  this  reason  a  kind  of  marriage 
relation  (contubernium)  was  recognized  among  them.5 

Under  the  oppressions  of  the  Empire  of  Rome,  so 
great  was  the  abhorrence  of  the  citizens  to  holding  the 

1  Strabo,  xiv,  664-8 ;  Smith's  Diet,  as  above ;  Wallon,  ii,  44,  45. 

2  Ibid.    For  an  account  of  the  power  of  the  pirates  and  its  final  over- 
throw, see  Plutarch's  Life  of  Pompey.  3  Wallon,  ii,  47,  8. 

4  Diod.  Fragm.  xxxvi,  iii,  1 ;  So.  Quart.  Rev.  vol.  xiv,  394 ;  Wallon,  ii, 
44. 

6  So.  Quart.  Rev.  xiv,  400  ;  Wallon,  ii,  209 ;  Plut.  Cato,  the  Censor. 
Columella,  in  his  work  De  re  rust.,  recommends  that  a  female  slave,  the 
mother  of  three  children,  should  be  relieved  from  hard  work,  and,  for  a 
greater  number,  should  be  granted  her  liberty ;  i,  8,  18. 


SLAVERY   AMONG   THE   ROMANS.  IxXlX 

civil  offices  of  the  government,  that  many  voluntarily 
subjected  themselves  in  preference  to  a  state  of  sla- 
very.1 

Slaves  constituted  an  important  article  of  commerce, 
and  also  of  revenue,  in  the  tariff  laid  upon  their  impor- 
tation and  exportation,  and  also  upon  their  sale.  Carthage 
itself  dealing  largely  in  slaves,  working  the  mines  of 
the  Peninsula  exclusively  with  their  labor,  carried  on  a 
brisk  trade  in  them.  Delos  and  Chios  also  were  slave- 
marts.  But  Rome  was  the  centre  of  the  trade,  and  the 
slave-market  at  Rome  gives  us  the  most  perfect  idea  of 
its  extent  and  variety.  Slaves  of  peculiar  beauty  and 
rarity  were  kept  separate  and  apart,  and  sold  privately. 
The  slaves  generally  were  sold  at  auction,  standing  upon 
a  stone,  so  that  they  might  be  closely  scrutinized.  Fre- 
quently they  were  stripped  naked,  to  avoid  the  cheats 
the  dealers  were  noted  for  practising.  Sometimes  the 
advice  of  medical  men  was  obtained.3  Newly  imported 
slaves  had  their  feet  whitened  with  chalk.3  Those  from 
the  East  had  their  ears  bored.  All  of  them  had  a  scroll 
(titulus)  suspended  around  the  neck,  giving  their  ages, 
birthplace,  qualities,  health,  &c.,  and  the  seller  was  held 
to  warrant  the  truth  of  this  statement.  He  was  bound 
to  discover  all  defects,  especially  as  to  health,  thievish- 
ness,  disposition  to  run  away,  or  to  commit  suicide.4 

If  the  seller  was  unwilling  to  warrant,  instead  of  the 
titulus,  he  placed  a  cap  (pileus)  upon  the  head  of  the 
slave,  and  exposed  him  thus.5  A  crown  upon  the  head 
indicated  a  captive  taken  in  war. 

The  seller  would  cause  the  slave  to  run,  leap,  or  per- 
form some  other  act  of  agility.  They  possessed  the  art 
of  causing  their  limbs  to  look  round  and  their  flesh 

1  Edwards's  Eccl.  Journ.  \  18. 

*  Claudian  in  Eutrop.  i,  35.  3  Juv.  i,  111  ;  vii,  10. 

4  Cic.  de  OS.,  iii,  17;  Aul.  Gell.  iv,  2;  Smith's  Diet  "Servus"  (Ro- 
man) ;  Wallon,  ii,  53.  6  Gell.  vii,  4. 


l.KXX  HISTORICAL   SKETCH   OF   SLAVERY. 

young,  and  to  retard  the  appearances  of  age.1  They 
vaunted  loudly  the  praises  of  their  good  qualities.  Varro 
and  Seneca,  Pliny  and  Quinctilian  give  warnings,  to  the 
purchasers,  of  these  arts,  and  rules  of  recommendation 
for  their  protection.  Still  the  sellers  succeeded  in  de- 
frauding, and  finally  an  edict  declared,  "  that  those  who 
sell  slaves  must  acquaint  the  purchaser  with  the  diseases 
and  vices  of  each,  and  declare  whether  he  has  been  a 
runaway  or  vagabond,  or  the  contract  of  sale  will  be 
avoided.  These  declarations  must  be  made  publicly  and 
aloud  before  the  sale.  If  a  slave  is  sold  contrary  to 
these  stipulations,  or  if  he  does  not  answer  to  the  things 
affirmed  or  promised  when  he  was  sold,  the  purchaser  or 
his  assigns  may  rescind  the  sale.  Moreover,  if  the  slave 
has  committed  any  capital  offence,  or  has  attempted 
suicide,  or  has  fought  with  wild  beasts  in  the  arena,  it 
must  be  made  known  at  the  sale,  or  it  can  be  avoided."2 

Slaves  newly  imported,  were  preferred  for  labor.  Those 
who  had  served  long  were  considered  artful.3  The  pert- 
ness  and  impudence  of  those  born  in  the  master's  house 
were  proverbial.4  The  nativity  of  the  slave  gave  some 
indication  of  his  qualities.  Thus,  the  Phrygian  was 
timid ;  the  African  vain  ;  the  Cretan  mendacious ;  the 
Sardinian  unruly ;  the  Corsican  cruel  and  rebellious ;  the 
Dalmatian  ferocious;  the  Briton  stupid;  the  Syrian 
strong ;  the  Ionian  beautiful ;  the  Alexandrian  accom- 
plished and  luxurious.5 

Dealing  in  slaves  was,  nevertheless,  considered  a  de- 
grading occupation.  They  were  denied  even  the  name 

1  Wallon,  ii,  56.     Hence,  mangozinare,  from  mangones. 

2  Wallon,  ii,  57,  8.     A  vast  number  of  questions  arose  under  this  edict 
as  to  what  was  a  defect.    For  some  of  them  see  Wallon,  as  above.     For 
the  manner  in  which  the  auctioneer  communicated  the  vices,  but  at  the 
same  time  covered  them  up  with  praises,  see  Horace,  Epist.  ii,  2. 

8  Terence,  Heaut.  v,  16.  *  Hor.  Sat.  ii,  6,  66. 

•  Wallon,  ii,  64,  65  j  So.  Quart.  Rev.  xiv,  394 ;  Juvenal,  v.  73 ;  Cic.  ad 
Att.  Lib.  iv,  16. 


SLAVERY   AMONG   THE   ROMANS.  Ixxri 

of  merchants  (mercatores),  but  were  called  mangoncs. 
They  amassed  large  fortunes,  yet  they  had  not  the  con- 
fidence of  the  community.  Plautus  makes  his  chorus 
speak  of  their  faithlessness  and  dishonesty.1  It  seems 
there  was,  and  ever  has  heen,  something  in  the  prosecu- 
tion of  this  traffic,  which  either  repels  the  good  man, 
or  else  deadens  his  sensibility,  and  soon  destroys  his 
virtue. 

To  attest  the  early  day  at  which  the  negro  was  com- 
monly used  as  a  slave  at  Rome,  the  following  description 
of  a  negress,  written  in  the  second  century,  serves  well : 

"  Interdum  clamat  cybalen ;  erat  unica  custoa. 
Afra  genus,  tota  patriam  testante  figura, 
Torta  comam,  labroque  tumens  et  fusca  eolorem, 
Pectore  lata,  jacens  mammis,  compressior  alvo, 
Cruribus  exilis,  spatiosa  prodiga  planta, 
Continuis  rimis  calcanea  scissa  rigebant."2 

So  Seneca:  "Nbn  est  .^Ethiopia  inter  suos  insignitus 
color,  nee  rufus  crinis  et  coactus  in  nodum  apud  Ger- 
manos."3 

Originally,  all  the  slaves  of  Rome  were  personal  slaves. 
None  were  attached  to  the  soil.  All  were  the  subject  of 
removal  and  sale.  When  slavery,  subsequently,  gradu- 
ally changed  into  serfdom,  the  contrary  was  true.  There 
were,  in  Rome,  public  and  private  slaves.  The  former 
belonged  to  the  state,  and  their  condition  was  rather 
better  than  the  other  class.  They  possessed  the  privilege 
of  willing  one-half  of  their  peculium.  They  were  em- 
ployed about  the  public  buildings,  and  as  attendants  of 
the  various  officers.  And  also  as  lictors,  jailors,  execu- 

1  Curculio,  17,  Sc.  I;  Smith's  Diet.  "Servus"  (Rom.);  Wallon,  ii, 
50,  51. 

*  Quoted  in  Types  of  Mankind,  255  ;  see  also  reference  in  same  place 
to  Virgil's  description  of  field  slaves. 

s  De  Ira,  cap.  iii. 

F 


lixxii  HISTORICAL  SKETCH   OF   SLAVERY. 

tioners,  watermen,  &C.1  There  were  also  convict- slaves 
(servi  poenae),  whose  servitude  was  the  penalty  of  some 
crime.  These  were  treated  with  great  rigor ;  and  it  is 
probable,  much  of  the  recorded  cruelty  to  slaves  was  to 
this  class.2 

The  private  slaves  were  again  distinguished  into  two 
classes,  the  rustic  and  the  city  slaves ;  any  number  of 
them,  owned  by  the  same  master,  were  called  familia. 
Hence,  every  master  had  the  familia  rustica,  and  the 
familia  urbana.  The  private  slaves  were  still  farther 
subdivided,  according  to  their  occupations,  and  from 
these  occupations  they  derived  their  names :  such  as 
ordinarily  vulgares,  mediastini,  and  quales  quales.  The 
literati,  were  literary  slaves.3 

The  number  of  Roman  slaves,  at  any  period,  cannot 
be  accurately  ascertained.  That  they  were  very  numer- 
ous, and  more  numerous  than  the  free  population,  is 
indisputable,  and  that  the  numbers  increased  rapidly 
during  the  latter  days  of  the  republic  and  under  the 
emperors.  The  numbers  owned  by  a  single  individual 
are  almost  incredible.4  They  were  chiefly  employed  in 
agricultural  pursuits,  or  the  mechanic  arts.5  Many,  how- 
ever, were,  in  these  days,  used  as  personal  attendants ; 
it  being  considered  discreditable  for  a  person  of  rank  to 
be  seen  without  a  train  of  them.6  From  the  moment  a 
stranger  entered  the  vestibule  of  a  Roman  house,  through 
the  hall,  in  the  reception-room,  at  the  table,  everywhere 

1  Smith's  Diet.  "  Servus ;"  So.  Quart.  Rev.  xiv,  427 ;  see  Livy,  xxvi,  47 ; 
Copley's  Hist,  of  Slav.  45  ;  Wallon,  ii,  89,  et  seq. 

2  For  a  full  inquiry  into  the  penal  slavery  of  the  Romans,  see  Ste- 
phens's  W.  I.  Slavery,  i,  337,  et  seq. 

3  Wallon,  ii,  95 ;  Smith's  Diet.  "  Servus ;"  Becker's  Gallus,  Exc.  Ill  to 
Sc.  I. 

*  So.  Quart.  Rev.  xiv,  396-7 ;  Wallon,  ii,  72,  et  seq.;  Becker's  Gallus, 
Exc.  Ill,  Sc.  I ;  Athena3us  says  as  many  as  20,000,  vi,  p.  272  ;  see  Pliuy, 
xxxiii,  vi,  9-10 ;  Juvenal,  xiv,  305  ;  Hor.  Sat.  Bk.  I,  iii,  11. 

5  Cic.  de  Off.  i,  42 ;  Liv.  vi,  12. 

6  Cic.  in  Piso,  27;  Hor.  Sat.  i,  3,  12. 


SLAVERY   AMONG  THE   ROMANS. 

lie  was  attended  by  different  servants,  each  taking  their 
name  from  their  particular  occupation.  The  same  sys- 
tem was  developed  in  every  part  of  the  household.  The 
female  slaves  were,  in  like  manner,  so  distinguished ; 
every  conceivable  want  being  attended  by  a  separate 
slave.  The  nursery,  especially,  being  furnished  with 
midwife  (obstetrix\  guard,  nurse,  porters,  &c.  &c.  The 
smallest  service  had  its  appropriate  slave.  Thus,  the 
holding  of  the  umbrella  (umbelliferce),  the  fan  (flabelli- 
ferce),  the  sandal  (sandaligerulce),  gave  names  to  particular 
slaves.  So  the  arranging  the  dress,  the  setting  of  the 
teeth,  and  the  painting  of  the  eyebrows,  required  dis- 
tinct attendants.1  Seneca  says,  "Infelix  qui  huic  rei 
vivit  ut  altilia  secet  decenter."2 

The  wife,  upon  her  marriage,  received  always  a  confi- 
dential slave  (dotalis).  He  belonged  to  her,  the  master 
having  no  control  over  him.  He  frequently  had  the  con- 
fidence of  the  wife  more  than  her  own  husband.  He 
was  sometimes  called  "  servus  recepticim"  because,  per- 
haps, he  received  and  took  charge  of  the  paraphernalia 
of  the  wife.3  For  her  footmen  and  couriers,  the  wife 
preferred  always  the  negroes ;  and  one  reason  given  was 
because  of  the  contrast  of  the  skin  and  the  silver  plate 
suspended  upon  the  breast,  upon  which  was  inscribed 
the  name  and  titles  of  the  mistress.4 

Even  the  schoolboy  was  followed  by  his  little  slave 
(vernula,  born  in  the  house),  to  bear  his  satchel  to  the 
school.5  The  old  and  luxurious  were  borne  in  sedans  or 

1  So.  Quart.  Rev.  xiv,  400 ;  Wallon,  ii,  118,  145.     It  is  probable  that 
the  same  slave  performed  several  of  these  offices  though  bearing  different 
names :  Ibid.  140,  and  authorities  cited. 

2  Epist.  xl,  vii,  4. 

8  Plautus,  Asin.  Act  I,  Sc.  i ;  Aul.  Gell.  Bk.  XVII,  vi ;  Wallon,  ii, 
116. 

4  Sen.  Epis.  Ixxxvii,  8 ;  Wallon,  ii,  120  ;  Mart,  vii,  201 ;  Becker's  Gal- 
lus,  Exc.  Ill  to  Sc.  i,  201. 

6  Juv.  Sat.  x. 


Ixxxiv  HISTORICAL  SKETCH   OF   SLAVERY. 

chairs,  by  stout  Mesian  slaves  ;  while  the  wealthy  made 
an  ostentatious  display  of  their  means,  by  multiplying 
the  number  of  their  bearers  (lecticarii}.1 

In  addition  to  the  common  employments  of  slaves, 
they  were  frequently  used  in  other  spheres,  where  the 
labor  was  more  or  less  intellectual.  The  literary  slaves, 
those  used  as  librarians  and  amanuenses,  were  of  this 
class.  So  all  the  professions,  now  termed  "learned," 
were  not  free  from  slave  competition.  "Physic"  cer- 
tainly was  not.  In  every  branch  of  trade  and  commerce 
slaves  were  employed  by  their  masters  as  agents,  and  in 
many  cases,  sole  managers  and  controllers.3 

The  Roman  sports,  corresponding  to  their  tastes,  were 
always  rough  and  violent.  The  combat  of  the  gladiators 
was  more  exciting  and  attractive  than  the  pathos  of 
tragedy,  or  the  wit  of  the  comic  muse,  though  Terence 
and  Plautus  catered  to  their  taste.  To  rear  and  prepare 
slaves  for  these  dangerous  and  murderous  conflicts,  as 
well  as  for  the  fighting  of  wild  beasts,  became  a  common 
practice,  especially  under  the  emperors ;  who  encouraged 
these  sports  in  the  people,  in  order  to  disengage  their 
thoughts  from  their  own  bondage.  We  should  not, 
however,  judge  them  too  harshly  for  this  cruelty,  as 
frequently  freemen,  knights,  senators,  and  even  empe- 
rors, descended  into  the  arena,  and  engaged  in  the  fatal 
encounter.3  Sometimes  even  women  joined  in  the  con- 
flict.4 Juvenal  gives  a  graphic  idea  of  the  passion  for 
this  cruel  sport,  in  the  description  of  the  horrid-looking 

1  Juv.  Sat.  vii,  ix,  190,  200. 

8  Wallon,  ii,  124;  Plautus,  Menaechmi,  Act  V,  Sc.  iii;  C.  Nep.  Pomp. 
Att.  13  ;  So.  Quart.  Eev.  xiv,  398-9.  See  Becker's  Gallus,  Exc.  Ill  to 
Sc.  i,  for  a  full  and  learned  disquisition  upon  the  various  classes  of  slaves, 
their  names,  and  occupation.  It  would  seem  as  if,  in  the  earlier  days, 
medicine  was  not  considered  an  honorable  avocation  with  the  Komans. 
Plautus  does  not  hesitate  to  ridicule  the  whole  fraternity  (Menajchmi, 
Act  V,  Sc.  i). 

8  Wallou,  ii,  126-139 ;  Smith's  Diet.  "  Gladiatores ;"  Livy,  xxviii,  21  ; 
Suet.  Jul.  Caes.  xxxix.  «  Suet.  Dom.  iv. 


SLAVERY   AMONG  THE   ROMANS.  IxXXV 

gladiator,  for  whose  bed,  simply  on  account  of  his  pro- 
fession, Hippia,  the  wife  of  a  senator,  abandoned  her 
husband  and  her  home.1 

This  training  of  the  slave,  rendered  him  indomitable 
and  intractable.  Hence,  we  find  this  particular  class 
frequently  in  insurrections.  In  Sicily  the  servile  wars 
assumed  a  more  alarming  aspect.2 

The  price  of  slaves  in  Eome  varied  very  much  at  dif- 
ferent times,  and  according  to  the  qualities  of  the  slave.3 
Under  the  empire,  immense  sums  were  paid  for  beautiful 
slaves,  and  such  as  attracted  the  whim  of  the  purchaser. 
We  have  accounts  of  their  selling  from  100,000  to 
200,000  sesterces  (say  five  to  ten  thousand  dollars).4  In 
the  time  of  Horace,  500  drachm ee  (about  one  hundred 
dollars)  was  a  fair  price  for  an  ordinary  slave.3  Eunuchs, 
clowns,  or  jesters,  and  pretty  females,  brought  high 
prices.6  Females  generally  sold  for  less  than  males.7 
Hannibal,  after  the  battle  of  Cannae,  being  burdened 
with  his  prisoners,  suffered  the  knights  (equites)  10  be 
ransomed  at  seventy-five  dollars,  the  legionary  soldier  at 
fifty  dollars,  the  slaves  at  twenty  dollars.8  Negroes,  being 
generally  slaves  of  luxury,  commanded  a  very  high  price.9 
Juvenal  declares,  that  a  rich  man  could  not  enjoy  his 
dinner  unless  surrounded  by  the  dusky  and  active  Moor, 
and  the  more  dusky  Indian.10 

The  status  of  the  slave,  in  the  Eoman  law,  was  lite- 
rally as  a  thing  and  not  as  a  person.  Some,  apparently 
paradoxical,  rights  were  given  to  him,  which  we  cannot 
here  specifically  repeat.  His  general  status  was  "  pro 

1  Satire,  vi,  110.  *  Smith's  Diet.  "  Servus." 

*  For  the  prices  in  the  time  of  Justinian,  see  Codex,  L.  vi,  tit.  44,  \  3  ; 
Wallon,  ii,  160. 

4  Martial,  iii,  62  ;  xi,  70  ;  Pliny,  vii,  x,  5,  6.  5  Sat.  ii,  7,  43. 

6  Martial,  viii,  13 ;  Plaut.  Pers.  Act  IV,  Sc.  iv,  113. 

7  Smith's  Diet.  "  Servus"  (Roman). 

8  So.  Quart.  Rev.  xiv,  398.  »  Juvenal,  v,  73. 
10  Sat.  xi,  211. 


HISTORICAL   SKETCH   OF  SLAVERY. 

quadrupedibus."  He  consequently  could  not  be  a  party 
nor  a  witness  in  court,  except  in  extreme  cases,  and  then 
under  torture.1  He  could  acquire  no  property ;  his  pecu- 
lium  being  held  only  at  the  will  of  the  master.  What- 
ever he  received,  by  gift  or  bequest  from  others,  became 
immediately  the  property  of  his  master.  He  lived,  as  it 
were,  in  the  shadow  of  his  master.  To  him,  all  his 
gains,  his  acts,  and  the  very  current  of  his  life,  tended. 
From  him,  he  received  support  and  protection.  He  was, 
like  the  son  and  all  the  household  of  the  Eoman,  swal- 
lowed up  in  the  master.  The  state  recognized  the 
citizen,  and  addressed  its  laws  and  its  requirements  to 
him.  The  master  controlled,  as  he  listed,  the  household 
of  which  he  was  the  head  and  representative.  Hence, 
the  power  to  kill  the  son  and  the  slave  with  impunity ; 
a  power  recognized,  as  to  the  latter,  until  the  days  of 
Antoninus,  when  it  was  abolished.2  By  the  same  consti- 
tution, for  cruel  treatment,  the  master  might  be  com- 
pelled to  sell  the  slave,  and  the  slave  was  empowered  to 
make  his  complaint  to  the  proper  authority.3 

Notwithstanding  this  unlimited  power  of  the  master, 
and  the  fact  that  there  are  recorded  many  instances  of 
its  cruel  abuse,4  yet  other  facts  and  circumstances  impress 

1  Dig.  xxii,  \  5,  De  Testibus ;  Terence,  Phorm.  Act  II,  Sc.  i,  292 ; 
Plaut.  Curcul.  Act  V,  Sc.  ii,  630  ;  Juvenal,  x,  100.  It  would  seem  from 
this  passage  that  they  testified  with  a  halter  around  their  necks. 

*  Wallon,  Part  II,  ch.  v,  vi ;  Gaius,  i,  52  ;  Smith's  Diet.  "  Servus."  A 
constitution  of  Claudius  also  made  the  homicide  of  a  slave  murder.  It 
farther  provided  that  the  exposure  of  an  infirm  slave  gave  him  freedom  j 
Sueton.  Claud,  xxv. 

8  Seneca,  de  Benef.  iii,  22.  According  to  Bodin,  in  commenting  on 
this  passage  in  Seneca,  Nero  was  the  first  emperor  who  required  of 
magistrates  to  receive  the  complaints  of  slaves  against  their  masters.  It 
would  be  a  curious  fact  if  the  tyrant  of  the  citizen  was  indeed  the  defender 
of  the  slave.  Troplong,  Influence  du  Christianisme,  &c.,  148. 

4  The  cases  of  Flaminius,  who  killed  a  slave  to  gratify  a  guest  who  had 
never  seen  a  man  killed  (Plutarch's  Life  of  Flaminius),  and  of  Polio, 
who  fed  his  enormous  fish  upon  the  bodies  of  his  slaves  (Seneca,  de 
Ira,  Lib.  iii,  ch.  xl),  are  familiar  to  all  who  have  read  or  heard  of  Roman 
slavery. 


SLAVERY   AMONG   THE   ROMANS.  Ixxxvil 

the  belief  that,  as  a  general  rule,  the  relation  of  master 
and  slave  was  one  of  kindness  and  mutual  regard.1  This 
was  peculiarly  true  of  the  urban  slave,  he  that  was  always 
near  his  master.2  The  rustics,  controlled  by  the  villicus, 
and  often  unseen,  for  years,  by  the  master,  were  doubt- 
less more  frequently  subjected  to  oppression.3  The 
claims  of  humanity  were  not  entirely  forgotten,  nor 
overwhelmed  by  the  more  practical  calls  of  interest. 
Hence,  we  find  their  moralists  discussing  clearly  and 
fully  such  questions,  as  whether,  in  a  famine,  the  master 
should  abandon  his  slave  ?  Whether,  in  the  case  of  dis- 
tress at  sea,  where  the  vessel  must  be  lightened,  should 
valuable  property  or  valueless  slaves  be  cast  overboard  ?4 
It  is  true,  that  the  elder  Cato,  in  giving  advice  and  direc- 
tions as  to  the  management  of  a  farm,  recommends  the 
sale  of  old  and  infirm  slaves.5  Yet  this  is  only  the 
opinion  of  one  man,  and  one  noted  for  avarice — a  pas- 
sion which  withers  and  blights  the  principle  of  humanity 
in  any  soul^and  in  any  age  of  the  world.6  Certain  it  is, 
that  we  find  the  corpse  of  the  deceased  slave  frequently 
interred  in  the  same  tomb  with  that  of  his  master.7  And 
the  Roman  satirist  declares  his  preference  to  be  a  slave, 
and  dig  some  great  man's  land,  than  to  be  the  satiated 
votary  of  pleasure.8 

1  Plutarch  tells  of  a  faithful  slave  of  Octavins  whose  ejes  were  torn 
out  while  he  was  defending  his  master  from  an  incensed  mob  ;  Tib.  Grac- 
chus. Many  such  instances  of  fidelity  and  affection  are  recorded.  See 
especially  Seneca,  De  Benef.  ch.  iii ;  Valer.  Max.  Lib.  vi,  8 ;  Macrob. 
Sat.  i,  11. 

8  Juvenal,  describing  the  h^ppy  condition  of  a  man  "  contented  with 
little,"  compares  it  to  that  of  the^household  slave.  Sat.  5x,  5. 

8  Quart.  Rev.  xiv,  401 ;  Wallon,  ii,  M4,  et  seq.  213  ;  Copley's  Hist,  of 
Slavery,  45  ;  Smith's  Diet.  "  Servus.'?  • 

4  Cic.  De  Offic.  iii,  23.  *  De  Re  Rust.  ii. 

6  Plut.  Cato,  the  Censor,  passim. 

*  Wallon,  ii,  213.  He  refers  to  the  work  of  Gruter,  Sect.  "  Affectus 
dominorum  et  patronorum  erga  servos  et  libertos."  I  regret  that  this 
work  is  not  within  my  reach.  See  also  Smith's  Diet.  "  Servus  ;"  Dig 
Lib.  xi,  tit.  7,  g  31.  •  Juvenal,  ix,  25. 


HISTORICAL   SKETCH   OF   SLAVERY. 

According  to  Horace,  they  joined  their  masters  in 
offering  up  prayers  and  thanksgivings  to  the  Gods.1  In 
the  earlier  days,  they  partook  of  their  meals  in  common 
with  their  masters,  though  not  at  the  same  table,  but 
upon  little  benches  (subsellia),  placed  at  the  foot  of  the 
lectus.3  This  habit  was  probably  continued  in  such  por- 
tions of  the  republic,  where  the  proprietors  of  small 
farms  overlooked  and  managed  them  for  themselves. 

While  the  law  recognized  no  property  of  the  slave, 
yet  his  peculium,  as  well  as  all  property  he  acquired  by 
gift  or  by  finding,  were  secured  to  him  by  public  opinion 
and  natural  justice.3  Hence,  we  find  slaves  frequently 
purchasing  their  freedom  ;  nor  was  a  Roman  audience 
shocked  in  hearing  a  master  entreat  his  own  slave  for  a 
loan  of  money,  and  finally  to  secure  his  end,  hoist  him 
upon  his  back,  and  submit  to  be  kicked  and  jeered  at  by 
his  own  slave.4  Frequently  they  became  very  rich.  Juve- 
nal scourges  the  respect  paid  to  money,  by  referring  to 
the  fact  that  a  freeman  felt  honored  by  the  company  of 
a  slave  if  only  rich.5 

The  Romans,  in  later  days,  had  no  asylums,  or  places 
of  refuge,  for  slaves  flying  from  the  cruelty  of  their  mas- 
ters ;  and  such  fugitives  were  harshly  treated,  being 
branded  and  forced  to  work  in  chains.  The  master 
could  pursue  him  anywhere,  and  all  officers  and  autho- 
rities were  required  to  give  him  aid.  A  class  of  persons 
called  Fugitivarii,  made  it  their  business  to  recover  run- 
away slaves.6  We  have  already  noticed  the  provisions 

1  Epist.  Bk.  II,  i,  142. 

2Plut.  Coriol.  24;  Smith's  Diet.  "Servus;"  Sen.  de  Tranquil,  ii,  15; 
Plaut.  Captivi,  iii,  i,  11. 

8  Terent.  Phorm.  Act  I,  Sc.  i,  9 ;  Seneca,  Ep.  80  ;  Plaut.  Eudens,  An- 
lularia. 

4  Plaut.  Asiiiaria,  Act  III,  Sc.  ii,  iii.  5  Sat.  iii,  150. 

8  Wallon,  ii,  243  ;  Smith's  Diet.  "  Servus ;"  Plautua,  Most.  Act.  IV,  Sc. 
i.  Death  was  sometimes  the  punishment  of  fugitives.  They  were  some- 
times thrown  among  wild  beasts.  Polybius,  Lib.  i ;  Lactantius,  Lib.  v, 
cap.  18 ;  Val.  Max.  Lib.  ii,  cap.  6. 


SLAVERY   AMONG   THE   ROMANS.  IxXXlX 

of  the  Constitution  of  Antoninus  to  protect  the  slave 
from  the  cruelty  of  the  master. 

There  were  certain  feasts  during  which  the  slaves 
were  abandoned  to  perfect  liberty  ;  of  these  the  most  re- 
markable were  the  Saturnalia,  when  such  perfect  equality 
existed  that  the  master  waited  on  the  slave  at  the  table. 
This  feast  was  in  the  latter  part  of  December,  and  lasted 
seven  days.1  Another  was  the  feasts  in  honor  of  Ser- 
vius  Tullius,  the  sixth  king  of  Rome,  he  being  himself 
the  son  of  Ocrisia,  a  captive  and  a  slave.  These  lasted 
from  the  Ides  of  March,  the  date  of  his  birth,  to  the 
Ides  of  April,  the  date  of  his  inauguration  of  the  temple 
of  Diana.8 

The  Compitalia,  a  feast  in  honor  of  the  Lares,  or 
Household  Gods,  was  also  a  season  of  liberty  to  the 
slaves.  Augustus  established  an  order  of  priests,  to 
attend  to  their  worship,  called  Augustales.  These  were 
selected  from  the  libertini,  or  freedmen.3 

The  intimate  relation  between  the  slaves  and  their 
masters,  may  be  gathered  from  many  other  allusions  in 
the  Roman  authors.  Juvenal  gives,  as  the  especial  rea- 
son for  leading  an  upright  life,  "  that  you  may  be  able 
to  despise  your  servants'  tongues.  For  bad  as  your 
slave  may  be,  his  tongue  is  the  worst  part  about  him. 
Yet  worse  are  you  when  you  place  yourself  in  his 
power."4  The  too  intimate  relation  between  the  slave 
and  the  mistress,  which  sometimes  existed,  did  not 
escape  his  observing  eye,  or  his  lashing  pen.5  A  gilded 
bed,  he  said,  seldom  witnessed  childbirth  ;  but  he  con- 
soles the  childless  husband  with  the  reflection,  that  if 

1  Macrob.  Saturnal. ;  Niebuhr,  Hist,  of  Rome,  vol.  i,  p.  319.     Horace 
gives  an  amusing  account  of  an  interview  between  himself  and  one  of  his 
slaves  on  the  occasion  of  the  Saturnalia.     Satires,  Bk.  II,  Sat.  vii. 

2  Wallon,  ii,  235-6.     The  origin  of  the  name  "  Servua"  is  attributed  by 
some  to  "  Servius." 

3  Dion,  iv,  14 ;  Macr.  Sat.  i,  7  ;  Smith's  Diet.  "  Compitalia." 

4  Sat.  ix,  86.  6  Sat.  vi,  300. 


XC  HISTORICAL   SKETCH   OF   SLAVERY. 

the  child  was  allowed  to  be  born,  he  would  be  "  the  sire 
perchance  of  an  Ethiopian — a  blackamoor  would  be  his 
sole  heir."1 

There  were,  doubtless,  instances  of  great  cruelty  ex- 
hibited towards  slaves — such  as  justified  partially  the 
picture  drawn  by  the  satirist  of  the  haughty  and  over- 
bearing wife  compelling  her  husband  to  crucify  an  inno- 
cent slave  :  "  Crucify  that  slave  !"  "What  is  the  charge, 
to  call  for  such  a  punishment  ?  What  witness  can  you 
produce  ?  Who  gave  the  information  ?  Hark  !  where 
man's  life  is  at  stake,  no  deliberation  can  be  too  long." 
"  Idiot !  so  a  slave  is  a  man  then  !  Let  it  be  that  he  has 
done  nothing.  I  will  it ! — I  insist  on  it !  Let  my  will 
stand  instead  of  reason."2  Nevertheless,  with  the  hu- 
mane at  least,  the  assurance  of  Trimalchio  to  his  guests 
was  believed  and  observed.  "  Amici  et  servi  homines 
sunt,  et  seque  unum  lacten  bibunt."  Hence,  we  find 
the  great  moralist  announcing,  "  Cum  in  servum  om- 
nia  liceant,  est  aliquid,  quod  in  homineni  licere,  com- 
mune jus  vetet."3 

1  Sat.  vi,  700. 

*  Juvenal,  Sat.  vi,  219,  rendered  thus  by  Gifford: 

"  '  Go  crucify  that  slave !'     '  For  what  offence  ? 
Who  the  accuser  ?     Where  the  evidence  ? 
For  when  the  life  of  man  is  in  debate, 
No  time  can  be  too  long,  no  care  too  great. 
Hear  all,  weigh  all  with  caution,  I  advise.' 
'Thou  sniveller!  Is  a  slave  a  man?'  she  cries. 
'  He's  innocent — be't  so — 'tis  my  command, 
My  will — let  that,  sir,  for  a  reason  stand.'  " 

All  the  descriptions  of  Juvenal  are  exaggerated  of  course.  Satire 
deals  in  hyperbole,  and  requires  only  a  substratum  of  truth.  The  de- 
scriptions he  gives  of  the  lewdness  and  corruption  of  the  Roman  women, 
if  literally  true,  would  be  a  more  awful  picture  than  that  of  the  slaves. 
Sat.  vi,  passim. 

This  cruelty  on  the  part  of  the  master  frequently  and  usually  rebounded 
on  himself  in  the  vengeance  of  the  slaves.  Pliny  gives  a  striking  instance 
of  this.  Epis.  iii,  14. 

*  Sen.  de  Clem,  i,  18. 


SLAVERY  AMONO  THE  ROMANS.  XCl 

The  punishments  inflicted  upon  slaves  for  offences 
were  various,  and  some  very  severe.  They  necessarily 
differed  from  those  prescribed  for  the  same  offences 
when  committed  by  freemen.  Minor  misdemeanors  were 
submitted  to  the  correction  of  the  master.1  The  courts 
took  cognizance  only  of  graver  charges,  and  even  of 
these  the  master  seems  to  have  had  concurrent  jurisdic- 
tion.2 The  removal  of  the  urban  slave  into  the  familia 
rustica,  was  a  mild  and  yet  a  much-dreaded  penalty.  In 
such  cases  they  worked  in  chains.8  The  handmill  (mola 
pistrinum)  was  also  a  place  of  punishment,' and  its  con- 
stant working  became  sometimes  severe.  Thus  asks 
the  slave  in  the  Asinaria,  "  Will  you  send  me  there  where 
stone  grinds  stone  V'4  Sometimes  they  were  scourged, 
after  being  suspended  with  manacles  to  the  hands  and 
weights  fastened  to  the  feet.5  Another  mode  of  punish- 
ment was  a  wooden  yoke  (furca)  upon  the  neck,  and 
bound  to  the  arms  on  either  side.6  Upon  every  Roman 
farm  was  a  private  prison  (ergastulum),  in  which  refrac- 
tory slaves  were  confined.  A  trustworthy  slave  was  the 
keeper.  They  were  abolished  in  the  time  of  Hadrian.7 
Sometimes  extraordinary  and  cruel  punishments  were 
resorted  to  ;  such  as  cutting  off  the  hand  for  thefts,  and 
death  by  the  cross.  These,  however,  were  very  rare.8 

1  Cato,  the  Censor,  upon  his  farm,  instituted  a  kind  of  jury  trial  among 
the  slaves  themselves,  and  submitted  to  them  the  guilt  and  the  punish- 
ment.    Copley's  Hist,  of  Slavery,  44. 

2  This  is  inferrible  from  a  passage  in  Horace,  where  he  represents 
himself  as  the  judge  of  his  slaves,  even  in  cases  of  theft  or  murder.     See 
Stephens  on  West  India  Slavery,  341.     Dig.  Lib.  xi,  tit.  4,  sect.  5. 

8  Plautus,  Hostel,  Act  I,  Sc.  i. 

4  Plaut.  Asin.,  Act  I,  Sc.  i.     See  also  Odyssey,  vii,  104.     Cato,  De  re 
rust.  56  ;  Matthew  24  :  41. 
6  Asinaria,  Act  II,  Sc.  ii. 

6  Plautus,  Casina,  Act  II,  Sc.  ii ;  Mil.  Act  II,  Sc.  iv;  Mostel.  Act  I, 
Sc.  i ;  Dig.  Lib.  48,  tit.  13,  \  6. 

7  Columel.  i,  8  ;  Gaius,  i,  53  ;  Juv.  viii,  180. 

8  Plaut.  Epid.  Act  I,  Sc.  i,  ii ;  Hor.  Ep.  i,  16,  17  ;  Senec.  De  Ira,  iii, 
40. 


XCli  HISTORICAL   SKETCH   OF   SLAVERY. 

In  every  slaveholding  state,  the  intimate  terms  of 
companionship  of  the  master  and  slave  necessarily  give 
the  slave  frequent  opportunity  for  committing  violence 
upon  the  master  unknown  to  any  other  person.  To 
protect  the  master,  the  Eoman  law  was  very  stringent, 
and  provided  that,  where  the  master  was  found  mur- 
dered in  his  house,  and  no  discovery  of  the  perpetrator, 
all  the  domestic  slaves  should  be  put  to  death.  This  law 
necessarily  could  be  enforced  very  rarely,  as  the  slaves 
would  discover  themselves  the  murderer  in  their  midst. 
However,  we  find  that  on  some  occasions,  it  was  en- 
forced rigorously — we  might  almost  say  barbarously.1 

Instances  of  manumission  were  very  frequent  among 
the  Romans.  This  could  be  effected  in  various  ways, 
and  the  effects  of  it  differed  under  different  circum- 
stances. In  all  cases,  the  enfranchised  slave  continued 
to  serve  his  former  master,  who  became  his  patron. 
Thus,  in  the  Menaschmi,  the  freedman  addresses  his 
former  master,  "My  patron,  I  do  entreat  that  you  won't 
command  me  any  the  less  now,  than  when  I  was  your 
slave.  With  you  will  I  dwell,  and  when  you  go,  I'll  go 
home  with  you."3 

Liberty  was  sometimes  granted  the  slave  by  way  of 
reward  for  discovering  the  perpetrators  of  certain 
crimes.3  The  enjoyment  of  liberty  for  a  certain  time 
barred  the  master's  right,  it  being  included  within  the 
prcescriptio  temporis.*  On  the  contrary,  no  length  of 
illegal  bondage  deprived  the  slave  of  the  privilege  of  as- 
serting his  right  to  liberty.5 

If  the  freedman  conducted  himself  ungratefully  towards 
his  patron,  he  was  reduced  to  his  former  state  of  slavery.8 

1  Tac.  Ann.  xiv,  41  ;  Cic.  ad  Fam.  iv,  12. 

2  Plautus,  Mengechmi,  Act  IV,  Sc.  vi.       8  Code  Theod.  tit.  21,  |  2. 
4  Code  Theod.  tit.  14 ;  Bk.  VII,  tit.  39,  \  3.  5  Gaius,  ii,  48. 

6  Sueton.  Claudius,  xxv.  This  rule  seems  not  to  have  obtained  in  the 
time  of  Nero  (see  Tac.  Ann.  xiii,  27),  but  was  restored  under  the  later 
emperors.  Dig.  Lib.  xi ;  tit.  9,  §  30. 


SLAVERY   AMONG   THE   ROMANS.  XC111 

He  was  bound  to  support  his  patron,  and  the  children 
of  his  patron  if  necessary ;  and  to  undertake  the  man- 
agement of  his  property  and  the  guardianship  of  the 
children.1  E  converse,  the  patron  lost  all  of  his  rights,  if 
he  failed  to  support  his  freedman,  in  case  of  necessity. 
These  patronal  rights  were  very  considerable,  espe- 
cially in  relation  to  the  succession  to  the  property 
of  the  freedman.3  By  a  decree  of  the  emperor  declaring 
the  libertus  to  be  ingenuus,  the  patronal  rights  were  not 
destroyed.  This  change  was  denominated  "jus  annuli 
aurei,"from  the  fact  that  the  ingenui  alone  had  the  right 
of  wearing  the  gold  seal-ring.  That  of  the  liberti  being  of 
silver,  and  the  slaves  of  iron.3  If,  however,  the  form  of 
proceeding,  entitled  natalibus  restitutio,  was  adopted  to 
confer  perfect  freedom  on  the  libertus,  this  took  away 
the  patronal  rights,  because,  by  the  fiction,  the  freedman 
was  restored  to  his  natural  rights  of  liberty.4 

In  some  cases,  by  the  act  of  manumission,  the  slave  be- 
came a  Roman  citizen  at  the  same. time  that  he  became 
a  freedman.  In  other  cases  he  became  only  a  Latinus  or 
Latinus  Junianus,  so  called  from  the  fact  that  the  Lex 
Junia  declared  and  defined  the  rights  of  such  persons, 
and  placed  them  on  the  same  footing  with  colonized 
citizens — Latini  coloniarii.5  In  various  ways  the  La- 
tinus could  obtain  the  rights  of  citizenship.  The  Lex 
Aelia  Sentia,  prescribed  the  formalities  necessary  to 
effect  this  object.6  There  was  still  a  lower  class  of  freed- 
men,  but  a  little  elevated  above  slaves,  termed  Dedititii. 
They  took  the  name,  and  their  status  was  the  same  with 
the  peregzini  dedititii,  or  persons  subdued  by  the  Roman 

1  Dig.  Lib.  xxxvii,  tit.  14,  §19.  *  Smith's  Diet.  "  Patronus." 

8  Smith's  Diet.  "  Annulus  ;"  Isidorus,  xix,  32  ;  Dig.  Lib.  xl,  tit.  10, 1 
5.  St.  James  alludes  to  this  in  ch.  ii,  v.  2. 

4  Dig.  Lib.  xl,  tit.  11. 

6  Smith's  Diet.  "  Libertus ;"  Gaius,  iii,  56.  The  Latinus  had  not  the 
power  of  making  a  will,  nor  of  taking  under  a  will.  Gaius,  i,  24. 

6  Gaius,  i,  28. 


HISTORICAL   SKETCH   OF   SLAVERY. 

arms,  and  submitting  to  their  conquerors  unconditionally. 
They  were  not  slaves,  but  had  not  political  existence. 
The  Lex  Aelia  iSentia,  adopted  in  the  time  of  Augustus, 
declared  all  manumitted  slaves  to  be  Dedititii,  who,  pre- 
vious to  manumission,  had  been  in  bonds,  or  branded, 
or  put  to  torture,  or  fought  with  wild  beasts,  or  as  gla- 
diators.1 This  law  seems  to  have  been  framed  to  protect 
the  state  from  the  too  frequent  and  unlimited  use  of  the 
power  of  manumission  in  the  master.  Hence,  one  of  its 
provisions,  that  slaves  manumitted  under  the  age  of 
thirty  years  became  Roman  citizens  only  when  a  legal 
ground  (justa  causa)  for  such  manumission  had  been 
made  to  appear  before  the  Consilium,  a  tribunal  ap- 
pointed especially  for  this  purpose,  and  which  held  ses- 
sions at  stated  times,  in  the  provinces  and  at  Rome.8 
Other  restrictions  on  manumission  were  prescribed 
by  this  law,  as  to  masters  under  the  age  of  twenty 
years  ;  and  where  the  act  was  done  with  a  view  to  de- 
fraud creditors.3  Constantino  abolished  almost  all  the 
formalities  necessary  for  manumission,  and  gave  to  the 
freedman  in  every  case  the  privileges  of  Roman  citizen- 
ship. What  was  left  undone  by  him  Justinian  com- 
pleted, and  opene<J  wide  the  doors  and  added  greatly 
to  the  inducements  for  general  emancipation.4 

The  condition  of  the  freedman  in  the  earlier  days  of 
Rome  differed  but  little  from  that  of  the  slave.  "  Liber- 
tis,  quibus  illi  non  multum  secus  ac  servis  imperabant."* 

There  were  instances,  however,  of  freedmen  and  their 

1  Gaius,  i,  13  ;  Smith's  Diet.  "  Dedititii." 

8  Gaius,  i,  19,  20. 

8  Ibid.     Smith's  Diet.  "  Lex  Aelia  Sentia." 

4  Constitutions  of  Constantine.  Justinian's  Institutes.  See  Troplong, 
Influence  du  Christianisme,  &c.,  159,  et  sq. 

6  Cic.  ad  Quint.  The  suit  to  obtain  freedom,  was  called  "  proclamare 
ad  libertatem."  Cicero  is  related  by  Plutarch  to  have  perpetrated  a 
pun  upon  this  word.  A  person  suspected  of  having  been  once  a  slave, 
was  speaking  boisterously  in  the  Senate.  "  Nolite  mirari,"  said  Cicero 
to  the  bystanders,  "  quia  unus  est  ex  iis,  qui  olim  proclamaverunt." 


SLAVERY  AMONG  THE  ROMANS.          XCV 

descendants  attaining  eminence  and  distinction  among 
the  Romans.  Servius  Tullius,  "the  last  of  the  good 
kings,"  was  the  son  of  a  bondmaid.1  Vindicius,  who 
gave  to  the  Conscript  Fathers  notice  of  a  secret  treason, 
himself  a  slave,  was  mourned  publicly  by  the  Roman 
matrons  at  his  death,  as  Brutus  had  been.2  Terence,  a 
captive  slave,  born  near  Carthage,  became  the  delight  of 
Roman  audiences,  through  his  graceful  comedies.3  And 
Horace  was  not  ashamed  to  acknowledge  himself  the  son 
of  a  freedman.'4 

There  existed  no  reason  why  this  result  should  not 
follow.  The  captives  brought  to  Rome  were  of  races 
intellectually  equal ;  in  cultivation,  superior  to  their  Ro- 
man masters.  Slavery  was,  to  them,  an  unnatural  con- 
dition. The  inferior  should  serve  the  superior,  and  the 
reverse  is  a  violation  of  nature. 

The  precise  time  when  slavery,  property  in  the  person, 
ceased  to  exist  among  the  Romans,  cannot  be  fixed  with 
certainty.  It  was  never  abolished  formally,  by  statute  or 
decree.  Circumstances  combined  to  work  a  gradual 
change  in  the  system,  from  slavery  to  serfdom.5  Rome 
entered  into  the  turbid  flood  of  the  dark  ages  weighted 
with  slavery.  When  she  emerged  again,  so  that  history 

1  Liv.  i,  39  ;  Juvenal,  Sat.  viii.     Thus  rendered  by  Gifford : 

"  And  he  who  graced  the  purple  which  he  wore, 
The  last  good  King  of  Rome,  a  bondmaid  bore." 

2  Juv.  viii,  ad  finem;  Liv.  ii,  7.     Livy  derives  from  his  name  "vin- 
dicta"  the  rod  of  manumission — used  on  occasions  of  manumitting 
slaves. 

3  Life,  &c.,  Terence,  prefixed  to  his  plays. 

4  Sat.  vi.    He  did  not  hesitate,  however,  to  speak  scornfully  of  the  low 
birth  of  a  freedman,  who  was  made  a  military  tribune.     Carmina,  Lib. 
v,  Ode  iv. 

'  M.  Wallon,  speaking  of  slavery  under  the  empire,  says:  "L'homme 
libre  devient  moins  libre,  il  est  moins  maitre  de  lui  et  des  siens ;  et  par 
contre-coup,  1'esclave  n'a  pas  change"  en  droit :  il  n'a  pas  plus  de  libertS, 
mais  il  a  moins  de  dependance ;  et  le  mSme  mot  finira  par  couvrir  deux 
etats  fort  diffe'rents,  1'esclave  et  le  serf,  servus."  Part  iii,  ch.  iii,  121. 


XCVl  HISTORICAL   SKETCH   OF   SLAVERY. 

could  mark  her  appearance,  serfdom  was  substituted  in 
its  place.  The  causes  which  produced  this  result,  are 
matters  mostly  of  speculation.  A  few  we  may  clearly 
perceive.  The  supremacy  of  the  barbarian  conquerors, 
unused  to  luxury,  and  eschewing  even  the  comforts  of 
civilized  life.  The  common  bondage  into  which  their 
conquest  threw  both  master  and  slave.  The  stagnation 
of  commerce,  and  all  other  channels  of  industry.  These, 
and  concurrent  causes,  rendered  the  slave  valueless  in 
the  market,  and  a  burthen  to  the  master.  The  support 
of  the  aged  and  infirm  and  infants,  was  without  corre- 
sponding benefit,  when  the  labor  of  the  strong  and 
healthy  barely  provided  for  his  own  necessities.  The 
renunciation,  by  the  master,  of  his  rights  and  power, 
became  therefore  a  matter  of  interest, — a  much  stronger 
motive,  according  to  man's  history,  than  humanity  and 
charity. 

Many  have  sought  to  discover  in  Christianity,  and  its 
pure  and  holy  precepts,  a  sufficient  explanation  for  the 
extinction  of  slavery.  That  it  contributed  to  this  object 
is  undoubtedly  true ;  and  many  masters  felicitated  them- 
selves upon  the  charitable  act  of  manumitting  their 
slaves,  when  those  slaves  had  ceased  to  be  useful.  Habit 
possibly  would  have  continued  the  system  awhile  longer, 
and  Christianity,  to  this  extent,  shortened  its  duration. 
To  the  truly  pious  and  zealous,  imbued  with  the  doctrine 
of  the  equality  of  all  men  before  the  bar  of  God,  who  is 
no  respecter  of  persons,  and  that  every  man  is  a  brother, 
to  whom  we  should  act  as  we  would  have  him,  under 
similar  circumstances,  to  act  towards  us,  the  slavery  of 
Rome  must  have  appeared  sinful,  and  inconsistent  with 
their  professions  of  universal  charity.  Alexander  Seve- 
rus  caused  this  golden  rule  to  be  inscribed  not  only  upon 
the  walls  of  his  own  palace,  but  also  upon  all  the  public 
edifices.1  Constantine,  by  taking  away  the  restraints 

1  Lamp,  in  Vita  Alex.  Sev.  350 ;  Troplong,  Influence  du  Christianisme, 
Ac,  87. 


SLAVERY   AMONG   THE   ROMANS.  XCV11 

upon  manumission,  and  giving  additional  privileges  to 
those  manumitted  in  ecclesia,  by  enforcing,  with  stern 
penalties,  the  humane  treatment  of  slaves,  and  adopting 
in  his  laws  the  Christian  principle  of  brotherhood,  has 
received  from  M.  de  Chateaubriand  the  praise  of  having 
"affranchi  tout  d'un  coup  une  nombreuse  partie  de 
1'espece  humaine."1 

Yet  the  same  Emperor  forbade  the  marriage  of  the 
curiales  with  slaves,  under  penalty  of  the  woman's  being 
condemned  to  the  mines,  and  the  man  to  perpetual 
banishment,  with  confiscation  of  all  his  movable  goods 
and  city  slaves  to  the  public,  and  all  his  lands  and 
country  slaves  to  the  city  of  which  he  was  a  member.3 

The  true  agency  of  Christianity  in  effecting  the  de- 
struction of  Koman  slavery,  is  more  accurately  described 
by  M.  Troplong :  "  It  is  the  feudal  age,  which,  at  a  later 
period,  has  had  the  eternal  honor  of  having  restored  to 
liberty  the  lower  classes,  oppressed  with  the  yoke  of 
slavery.  To  arrive  at  this  great  result,  it  was  necessary 
that  Christianity,  penetrating  profoundly  the  heart,  had 
humanized  the  masters  to  a  high  degree  ;  and  that  the 
general  interests  had  been  brought,  by  a  happy  combina- 
tion of  circumstances,  to  agree  with  these  ideas.  Great 
revolutions  are  not  accomplished  by  a  sudden  virtue. 
Ages  of  preparation  are  necessary  before  they  arrive  at 
their  maturity.  Slavery,  though  ameliorated  by  Chris- 
tian morality  and  reforms  full  of  humanity,  continued  to 
exist  legally,  and  to  be  fed  from  the  impure  sources, 
trade  and  conquest."3 

In  Rome,  as  in  Athens,  the  morality  and  expediency 
of  slavery  did  not  fail  to  attract  the  attention  of  her 
statesmen  and  philosophers,  and  as  great  diversity  of 
opinion  existed  in  the  former  place  as  the  latter.  "  Our 

1  Essais  hist.,  torn,  i,  p.  308. 

«  Bingham's  Antiquities  of  the  Christian  Church,  Bk.  XXII,  ch.  ii,  §  6. 
3  Influence  du  Christianisme  surle  droit  civil  des  Remains,  162,  3.  See 
also  Sismondi,  torn,  i,  pp.  85   104. 

G 


XCVlil  HISTORICAL   SKETCH   OF   SLAVERY. 

slaves  are  our  enemies,"  said  Censor  Cato.  "Slaves 
truly,  but  men," — "fortasse  liberi  animo,"  preached  the 
almost  Christian  Seneca.  "  The  old  and  infirm  slaves 
are  a  nuisance  on  the  farm,  and  should  be  sold,"  said 
Cato.  "In  servos  superbissimi,  crudelissimi,  contume- 
liosissimi  sumus,"  responded  the  conscientious  Seneca. 
And  in  another  place,  either  from  inspiration  or  Chris- 
tian teaching,  adds  the  golden  rule,  "  Sic  cum  inferiore 
vivas,  quemadmodum  tecum  superiorem  velles  vivere."1 

Cicero,  the  greatest  of  Roman  philosophers  as  well  as 
orators,  seems  to  have  been  imbued  with  the  same  views 
concerning  slavery  as  Plato  and  Aristotle.  He  even 
justified  the  cruelty  with  which  some  of  them  were 
treated.  "  lis,  qui  vi  oppresses  imperio  coercent,  est  sane 
adhibenda  sgevitia,  ut  heris  in  famulos."2  Yarro  adopted, 
to  its  full  extent,  the  doctrine  of  Aristotle.3  Florus 
speaks  of  slaves  as  an  inferior  species  of  men.4  And 
Pliny  compares  them  to  the  drones  among  the  bees,  to 
be  forced  to  labor,  even  as  the  drones  are  compelled.3 

A  different  opinion  prevailed  among  the  later  writers, 
and  hence  we  find  but  one  voice  in  the  Digest  and  Code : 
"Jure  naturali  omnes  liberi  nascuntur."6  "Servitus 
est  constitutio  gentium  contra  naturam." 

So  Quintillian:  "Quid  non  liberum  natura  genuit? 
Taceo  de  servis,  quos  bellorum  iniquitas  in  prsedam  victo- 
ribus  dedit,  iisdem  legibus,  eadem  fortuna,  e&dem  neces- 
sitate natos.  Ex  eodem  ccelo  spiritum  trahunt;  nee 
natura  ullis,  sed  fortuna  dominum  dedit."7 

1  Let.  47 :  "  Quid  est  eques  Romanus,  aut  libertinus,  aut  servus  ? 
Nomina  ex  ambitione  aut  ex  injuria  nata."  Let.  32. 

8  De  OS.  Lib.  II,  7.  See  also  his  oration  against  Verres,  V.  3,  De 
rep.  iii.  »  De  re  rustica,  Ixvii,  1. 

4  Florus,  iii,  c.  xx,  2.  *  Pliny>  xi,  c.  xi,  1. 

•  Dig.  Lib.  IV,  De  Just,  et  Jure.      7  Declam.  iii. 


CHAPTER  VIL 

SLAVERY  IN   EUROPE   DURING  THE   MIDDLE  AGES. 

"!N  every  age  and  country,  until  times  comparatively 
recent,"  says  Mr.  Hallam,  "personal  servitude  appears 
to  have  been  the  lot  of  a  large,  perhaps  the  greater  por- 
tion of  mankind."1  Certainly  during  the  middle  ages, 
upon  the  continent  of  Europe,  it  was  universal.  So 
much  oppressed  and  deprived  of  so  many  privileges 
were  even  the  freemen  of  the  lower  classes,  that  it  is 
with  some  difficulty  that  we  are  enabled  to  distinguish 
the  slave,  the  serf,  and  the  freeman.  A  term  which,  in 
one  nation,  indicated  slavery,  in  an  adjoining  one  repre- 
sented a  class  of  freemen.  Thus,  the  collibert  of  France 
was  a  slave  :  "Libertate  carens  colibertus  dicitur  esse;" 
but  among  the  Lombards,  the  collibert  was  ranked  among 
freemen.2  The  truth  seems  to  be,  that  .all  the  classes 
below  the  nobles  or  lords,  were  in  a  state  of  actual  ser- 
vitude. In  the  absence  of  well-ordered  government,  the 
small  proprietors  of  lands  were  the  constant  subjects  of 
depredation  by  the  lawless  and  warlike.  Their  only 
recourse  was  the  protection  of  some  more  powerful 
neighbor.  For  that  protection  they  yielded  their  liberty, 
frequently  voluntarily,  becoming  thus  the  serfs  or  coloni 

1  Hist.  Middle  Ages,  ch.  ii,  pt.  ii,  p.  89.     "In  the  infancy  of  society,'' 
says  M.  Guizot,  "liberty  is  the  portion  of  strength.     It  belongs  to  who- 
ever can  defend  it.     In  the  absence  of  personal  power  in  the  individual, 
it  possesses  no  other  guarantee." — Essais  snr  1'Histoire  de  France,  12G. 

2  See  Appendix  to  Michelet's  History  of  France. 


C  HISTORICAL   SKETCH   OF   SLAVERY. 

so  universal  in  these  ages.1  In  seasons  of  famine,  also, 
many  freemen  sold  themselves  as  slaves.  Their  redemp- 
tion, at  equitable  prices,  is  provided  for  in  a  Capitulary 
of  Charles  the  Bald.2  Others  surrendered  themselves 
and  their  property  to  churches  and  monasteries,  and 
became,  with  their  posterity,  their  perpetual  bondmen.3 
To  these,  extraordinary,  were  added  the  usual  and  uni- 
versal sources  of  slavery,  viz.,  war,  debt,  crime,  birth, 
and  sale  of  themselves  and  of  children.4 

Slavery  existed  in  these  countries  long  before  their 
subjection  to  the  Roman  yoke.  The  number  of  domestic 
slaves,  previous  to  that  period,  was  small ;  but  the  prsedial 
or  agrestic  slaves  were  numerous.  Of  the  slavery  in 
Gaul  and  Germany,  previous  to  that  time,  we  have  some 
accounts.5  After  the  Roman  subjugation,  the  laws  of 
Roman  slavery  were  extended  more  or  less  to  every  na- 
tion, modified  necessarily  by  their  previous  customs. 

Frequently,  the  status  of  slavery  attached  to  every 
inhabitant  of  a  particular  district,  so  that  it  became  a 
maxim,  "  Aer  efficit  servilem  statum;"  a  different  atmo- 
sphere it  must  have  been  from  that  which  fans  the 
British  shores,  according  to  the  boasts  of  some  of  their 
judges.  It  is  a  little  curious  that,  by  an  ordinance  of 
Philip,  Landgrave  of  Hesse,  the  air  of  Wales  was  de- 
clared to  be  of  the  infected  species.6 

1  Guizot's  Hist,  of  Civilization  in  France,  g  8,  citing  Salvianus  de 
Gubern.  Dei.  Lib.  v.     Bishop  England  gives  us  this  quotation  from  Sal- 
vianus at  large,  in  Letter  VI,  to  Jno.  Forsyth,  p.  53.    See  also  Michelet, 
Origines  du  Droit  Frangais,  p.  274. 

2  Hallam,  as  above.    See  also  Muratori,  Annali  d'ltalia. 

3  Beaumanoir,  ch.  45.     In  a  charter  granted  by  the  Emperor,  Otto  I, 
to  a  monastery,  are  these  words  :  "  Si  vero  aliquis  ex  liberis  voluerit  litus 
fieri,  aut  etiam  colonis,  ad  monasteria  supra  dicta,  cum  consensu  suorum 
haeredum,  non  prohibeatur  a  qualibet  potestate."     Potg.  i,  5. 

4  See  Du  Cange  v.  Heribannum. 

6  Caesar,  De  Bel.  Gall.  Lib.  VI,  cap.  xiii ;  Tacitus,  cap.  xxiv ;  Potg. 

Lib.  I,  cap.  i ;  Giraud,  Histoire  du  Droit  Frangais  au  Moyen-Age,  art.  v. 

6  Hertius,  Lib.  II,  p.  xii ;  Potgiesser,  De  Stat.  &c.,  Lib.  I,  cap.  i,  \  15. 


SLAVERY   IN    EUROPE   IN   THE   MIDDLE   AGES.  Cl 

The  names  given  to  slaves  differed  in  the  several 
states,  and  at  different  times.  Among  the  French,  they 
were  called  hommes  de  pooste.1  In  some  of  their  authors, 
coustumiers.2  In  the  Salique  laws  and  the  Capitularies, 
they  were  called  servi,  tributarily  lidi,  coloni,  liti,  and 
lasince.3  In  the  formulas  of  Marculf,  they  are  distin- 
guished as  mansionarii  and  servientes.  In  the  Bavarian 
law,  lazi.  In  the  German  law,  homines proprii,  genetiarice, 
ancillce,  &c.  These  names  varied  in  different  centuries, 
indicating  a  change  in  their  employments,  and  a  meliora- 
tion of  their  condition.  In  the  twelfth  century  they 
were  first  called  "rustici;"  and  not  until  the  fourteenth 
were  they  called  glebarii,  indicating  their  permanent  at- 
tachment to  the  soil.  In  the  fourteenth  century,  also,  we 
first  find  them  called  slavi.4 

Of  slavery  in  the  German  states,  we  have  the  most 
full  and  accurate  account.  The  works  of  Heineccius 
and  Potgiesser,  and  especially  the  treatise  by  the  latter, 
"De  Statu  Servorum,"  answer  every  inquiry  we  could 
desire  to  make.  From  them  we  learn,  that  the  early 
German  slavery  was  mild  in  its  character,  differing 
widely  from  the  Roman.  The  master  and  the  slave  were 
equal  in  education,  tended  upon  the  same  flocks,  and 

1  Hallam,  as  above  ;  derived  from  the  Latin  Homines  in  potestate. 
Bonnemere.  2  Du  Cange  v.  Potestas. 

3  Hallam,  Potg.,  Lib.  I,  cap.  iii,  §  iv ;  Guizot,  Essais  sur  1'Histoire  de 
France,  134;  Giraud,  as  above. 

4  Potg.,  as  above. 

St.  Augustine  defines  Colonus  thus :  "  Coloni  dicuntur,  qui  conditionem 
debebant  genital!  solo  propter  agriculturam  sub  dominio  possessorum." 
De  Civ.  Dei.  Lib.  X,  cap.  i. 

Guizot,  in  his  Hist,  of  Civilization  in  France,  Lect.  vii,  distinguishes, 
at  length,  the  condition  of  the  Colonus  from  the  absolute  slave.  In  his 
Essais  sur  1'Histoire  de  France,  he  says,  that  these  names  varied  accord- 
ing to  the  extent  of  the  liberty  and  the  right  of  property  which  they 
possessed,  p.  134. 

Giraud  traces  the  Colonus  to  the  times  of  Augustus,  vol.  i,  p.  155. 

See  Bonnemere,  Histoire  des  Paysans,  Introduction. 


Cll  HISTORICAL   SKETCH   OF   SLAVERY. 

rested  upon  the  same  pillow.  The  invention  of  the  one 
was  not  taxed  to  provide  tortures  for  the  other ;  nor  did 
his  cruelty  excite  the  latter  to  devise  schemes  for  his 
destruction.  The  master  sometimes  did  kill  the  slave, 
not  from  cruelty  and  severity,  but  from  anger  and  im- 
pulse, aa  an  enemy,  and  for  his  own  protection.  In 
Celtic  Gaul,  a  custom  existed  at  one  time  of  burning 
the  slaves  upon  the  funeral  pyre  of  their  master.1  Caesar 
notices  this  custom  in  Gaul  ;3  and  Peter  Dusbergensis 
states  its  existence  among  the  Prussians.  The  latter 
gives  the  reason  for  it,  in  the  popular  belief  of  the  trans- 
migration of  souls :  that,  in  another  world,  the  soul  of 
the  slave  entered  into  the  master's  body,  and  that  of  the 
master  into  the  body  of  the  slave.3  A  similar  supersti- 
tion is  frequently  found  among  the  negro  slaves  in  the 
United  States  at  this  day. 

This  state  of  things  was  of  short  duration,  and  the 
condition  of  the  slave  became  worse.  The  power  of  the 
master  over  him  was  very  extensive  subsequently.  Thus, 
in  an  ancient  deed,  by  which  a  sale  of  a  freeman  into 
slavery  was  made  by  himself,  it  was  covenanted  that 
the  master  should  have  power,  "Ad  disciplinandum, 
tenendum,  imperandum,  et  quicquid  ei  placuerit  facien- 
dum, tarn  de  rebus,  quam  de  peculio."4  Slaves  could 
be  sold,  pawned,  or  otherwise  disposed  of,  and  were  the 
subject  of  inheritance  at  the  death  of  the  owner.  If, 
however,  the  master  left  no  heir,  the  slave  became  free  ' 
immediately.5  The  master's  power  seems  sometimes  to 
have  been  abused,  as  an  edict  of  Charles,  in  the  year 
864,  directs  that  slaves  guilty  of  a  fault,  should  be 
beaten  naked  with  rods,  and  not  with  huge  clubs.6 
Fugitives  were  arrested  and  returned  to  their  owners, 

1  Potgiesser,  Prolegomena,  §  xlviii.  2  De  Bel.  Gall.  Lib.  VI. 

8  Chron.  Pruss.  Part  III,  ch.  v,  cited  in  Potg. 
4  Quoted  in  Potg.  Lib.  I,  cap.  i,  g  v. 

6  Potg.  Proleg.  L.    Lib.  I,  cap.  iii,  §§  v,  x  ;  Heinec.  Elem.  Jur.  Germ. 
Lib.  I,  tit.  i.  Potg.  \  xiv. 


SLAVERY   IN   EUROPE   IN    THE    MIDDLE   AGES.          till 

and  if  no  owner  claimed  them,  were,  nevertheless,  re- 
tained in  slavery.  Even  shipwrecked  persons  were 
reduced  to  slavery,  for  many  centuries,  notwithstanding 
the  anathemas  of  the  Church.1 

We  may  judge  of  the  extent  of  the  master's  power 
by  a  German  proverb,  which  has  been  preserved :  "  He 
is  mine  :  I  can  boil  him  or  roast  him."  So,  also,  we  read 
of  a  German  custom  :  "  If  a  master  does  not  wish  to 
place  his  slave  in  irons,  he  can  put  him  under  a  cask, 
and  place  above  a  piece  of  cheese,  a  small  loaf  of  bread, 
and  a  pot  of  water,  and  leave  him  thus  till  the  third 
day."1 

The  slaves  were  distinguished  in  their  dress  from  free- 
men. "  After  a  battle,  in  the  year  711,  one  could  distin- 
guish," says  an  old  chronicler,  "the  corpses  of  the  Goths, 
by  their  rings."  Those  of  the  nobles  were  of  gold,  those 
of  the  freemen  of  silver,  and  those  of  the  slaves  of  cop- 
per.3 

The  sources  of  slavery  among  the  Germans  were  the 
same  as  with  the  Romans.  Tacitus  mentions  one  pecu- 
liar to  them,  viz.,  gaming,  the  loser  becoming  the  slave 
of  the  winner.4 

The  punishment  of  slaves  differed  from  that  prescribed 
for  freemen,  for  the  same  offence.  Thus,  where  a  free- 
man was  fined,  the  slave  was  stripped  naked  and  pub- 
licly whipped.  The  testimony  of  slaves  was  not  allowed 
against  a  freeman,  nor  were  they  permitted  to  bring  ac- 
cusations against  their  masters.  They  were  excluded 
from  all  offices,  nor  could  they  receive  ecclesiastical 
orders,  except  by  the  consent  of  their  master.5  Mar- 
riage was  not  allowed  among  them  until  the  ninth  cen- 

1  Potg.  Lib.  I,  c.  ii  and  iii. 

*  Cited  by  Michelet,  Origines  du  Droit  Frangais,  272. 

3  Capit.  v,  247,  vi,  271,  cited  by  Michelet,  as  above,  p.  273. 

4  Ea  est  in  re  prava  pervicacia:  ipsi  fidem  vacant.     Tac.  de  Mor. 
Germ.  6  Potg.  \  xi. 


CIV  HISTORICAL   SKETCH   OF   SLAVERY. 

tury,  and  then,  if  celebrated  without  the  master's  con- 
sent, it  was  void.1 

The  punishment  of  fugitives  varied ;  none  was  speci- 
fied among  the  early  Germans.  Among  the  Franks  it 
was  left  purely  to  the  discretion  of  the  master.  In  the 
Capitularies  we  frequently  find  directions  to  the  presby- 
ters of  churches  to  deliver  up  fugitives  seeking  refuge 
therein.3  The  laws  were  more  specific  as  to  the  punish- 
ment of  those  who  harbored  or  concealed  them.  By  the 
Bavarian  law  it  was  a  fine  and  the  restitution  of  another 
slave.  By  the  law  of  the  Visigoths  the  restitution  of 
three  slaves.  The  law  of  the  Frisians  agreed  with  the 
Bavarian.  The  Burgundian  law  provided  for  a  fine 
only.3 

Long  hair,  being  the  badge  of  a  freeman,  was  pro- 
hibited to  slaves.  Hence,  one,  that  permitted  a  fugitive's 
hair  to  grow  long,  was  subject  to  a  fine.  The  Burgun- 
dian law  forbade  the  giving  of  a  loaf  of  bread  to  a  fugi- 
tive. The  law  of  the  Visigoths  forbade  the  showing 
him  the  way, — ostendere  viam. 

Escapes  into  a  neighboring  state  were  frequent.  They 
were  always  unhesitatingly  delivered  to  their  owners. 
Marculf  has  preserved  the  form  of  a  letter  of  demand 
for  a  fugitive.  Potgiesser,  who  wrote  about  the  first  year 
of  the  eighteenth  century,  says  the  same  form  in  sub- 
stance was  used  in  his  day  for  the  demand  of  homines 
proprii.4 

Various  modes  of  manumission  were  recognized. 
After  the  days  of  Constantine,  manumission  in  ecclesid 
or  circa  altar  e,  was  the  most  common.  Something  in- 

1  Ibid.  3  xiv ;  Heinec.  EL  Jur.  Ger.  Lib.  I,  tit.  i. 

2  In  one  of  the  Capitularies  it  is  provided  that  slaves  taking  refuge  in 
a  church  are  to  be  delivered  up,  on  promise  of  a  light  punishment.     A 
fine  was  imposed  on  the  master  for  violently  abstracting  his  slave  from 
the  church,  and  for  violating  his  promise,  the  master  was  excommuni- 
cated.    Potg.  Lib.  II,  cap.  viii,  \\  10,  11. 

3  Potg.  Lib.  II,  cap.  viii.  4  Potg.  Lib.  II,  cap.  viii. 


SLAVERY   IN   EUROPE   IN   THE   MIDDLE   AGES.  CV 

dicating  a  renunciation  of  dominion  by  the  master  is 
all  that,  in  the  earlier  nations,  was  required.  Hence, 
the  striking  of  a  penny  from  the  hand,  among  the 
Franks,  the  leading  a  servant  to  an  open  door,  or  to 
where  two  roads  cross,  and  speaking  these  words,  "  De 
quatuor  viis,  ubi  volueris  ambulare,  liberam  habeas 
potestatem,"  adopted  among  the. Lombards,  the  delivery 
to  the  slave  of  the  arms  of  a  freeman,1  and  various  other 
modes,  were  considered  sufficient.2 

The  depriving  a  slave  of  an  eye  ipso  facto  manumitted 
him.3  For  other  cruelties  the  master  was  sometimes 
compelled  to  sell  him/ 

The  manumitted  slaves,  according  to  Heineccius,  dif- 
fered but  little  from  their  former  associates,  "  Quod  ad 
reliqua  attinet,  eorum  status  a  servorum  vel  hominum 
propriorum  conditione  parum  differt."5 

Towards  the  fifteenth  century  the  condition  of  slaves 
became  ameliorated  in  many  parts  of  Germany.  This 
seems  to  have  been  attributed  to  various  causes.  One 
cause  assigned,  was  the  introduction  of  the  Roman  law 
and  rule ;  under  which  the  coloni  were  recognized  in 
the  census  among  freemen,  because  they  possessed,  in 
a  modified  manner,  the  right  to  marry,  to  contract,  and 
to  make  a  testament,  whereas  under  the  Saxon  law  they 
were  ranked  as  slaves.  Another  cause  assigned,  was 
the  numerous  intestine  wars  among  the  German  states, 
which  necessarily  relaxed  for  the  time  the  domestic  dis- 
cipline over  their  slaves.  Another  cause  was  the  indul- 
gence and  negligence  of  masters,  especially  the  religious 
communities,  who  owned  large  numbers  and  demanded 
of  them  only  a  yearly  rent  or  hire.6  Occasionally,  how- 

1  The  use  of  these  arms  being  forbidden  to  slaves.     Thus,  in  Capitula- 
ries, Lib.  V,  cap.  247,  "  Et  ut  servi  lanceas  non  portent." 

2  Heinec.  El.  Jur.  Germ.  Lib.  I,  tit.  ii ;  Potg.  Lib.  IV. 

3  Ducange  v.  Servus.  4  Potg.  Lib.  I,  cap.  ii. 
6  Heinec.  as  above,  §  57. 

6  Potg.  Lib.  I,  cap.  iii,  \\  35,  36,  and  37. 


Cvi  HISTORICAL   SKETCH    OF   SLAVERY. 

ever,  the  immediate  tithe-gatherers  became  very  oppres- 
sive, and  demanded  more  than  was  required  by  their 
superiors.  The  Pope  himself  interfered  frequently  on 
such  occasions.1 

Another  cause  maybe  traced  in  the  effects  of  the  Cru- 
sades. In  these  holy  wars,  the  vassal  and  his  lord  had 
fought  side  by  side,  stimulated  by  the  same  religious 
enthusiasm,  rejoicing  in  the  same  victory,  and  suffering 
from  the  same  defeat.  The  idea  of  equality  among  men 
became  an  admitted  dogma,  and  the  friendships  origina- 
ting in  common  toils  and  sufferings  added  another  rea- 
son for  admitting  this  equality.  Commerce,  between 
nations,  springing  up  from  this  common  intercourse  and 
common  end,  tended  to  enlarge  and  liberalize  the 
opinions  of  masters  as  well  as  men.8 

In  addition  to  these,  were  the  mild  and  humanizing 
influences  of  Christianity,  which,  while  it  did  not  forbid 
the  control  of  the  master  over  his  slave,  for  their  mutual 
benefit,  exhorted  him  to  remember  that  his  slave  was 
"the  Lord's  freeman,"  and  joint  heir  with  him  in  Christ 
of  the  promises  held  out  to  the  faithful.  At  the  same 
time,  teaching  the  slave  obedience  to  his  master  under 
the  law,  all  earthly  authority  being  by  permission  ot 
God.  That  bond  or  free,  on  earth,  is  a  matter  of  no 
moment,  so  that  heavenly  freedom  is  obtained.  Tertul- 
lian  thus  developed  this  idea  to  the  early  Christians : 
"  In  the  world  they  who  have  received  their  freedom  are 
crowned.  But  thou  art  ransomed  already  by  Christ,  and 
indeed  bought  with  a  price.  How  can  the  world  give 
freedom  to  him  who  is  already  the  servant  of  another  ? 
All  is  mere  show  in  the  world,  and  nothing  truth.  For 
even  then,  thou  wast  free  in  relation  to  man,  being  re- 
deemed by  Christ,  and  now  thou  art  a  servant  of  Christ, 

1  See  the  Letters  of  Gregory  the  Great  to  the  Subdeacon  Peter,  as  to 
the  administration  of  the  property  of  the  Church  in  Sicily,  given  by  Gui- 
zot,  in  Sect.  8,  on  Hist,  of  Civil,  in  Europe. 

2  See  Michelet,  Hist.  &c.  Bk.  IV,  ch.  iv. 


SLAVERY   IN   EUROPE   IN   THE   MIDDLE   AGES.         CV11 

although  made  free  by  a  man.  If  thou  deemest  that  the 
true  freedom  which  the  world  can  give  thee,  thou  art, 
for  that  very  reason,  become  once  more  the  servant  of 
man,  and  the  freedom  which  Christ  bestows  thou  hast 
lost,  because  thou  thinkest  it  bondage."1 

So  Ignatius,  of  Antioch,  writes  to  the  Bishop  Poly- 
carp,  of  Smyrna  :  "  Be  not  proud  towards  servants  and 
maids ;  but  neither  must  they  exalt  themselves  ;  but  they 
must  serve  the  more  zealously  for  the  honor  of  God,  so 
that  they  may  receive  from  God  the  higher  freedom. 
Let  them  not  be  eager  to  be  redeemed  at  the  expense  of 
the  Church,  lest  they  be  found  slaves  of  their  own 
lusts."2 

Such  was  not  only  the  teaching  of  the  early  Christians, 
but  we  may  well  believe  their  works  were  in  accordance 
with  their  faith.  Thus,  when  a  fatal  pestilence  devas- 
tated Carthage,  we  find  the  Bishop  Cyprian  writing  to 
his  flock :  "  How  necessary  is  it,  my  dearest  brethren, 
that  this  pestilence  which  appears  among  us,  bringing 
with  it  death  and  destruction,  should  try  men's  souls ; 
should  show  whether  the  healthy  will  take  care  of  the 
sick ;  whether  relations  have  a  tender  regard  for  each 
other;  whether  masters  tvill  take  home  their  sick  servants."3 

Thus,  also,  we  find  in  the  Apostolical  Constitutions 
(which  is  of  very  early  date  in  the  Church,  though  not 
probably  of  apostolic  origin),  that  the  slave  of  a  believ- 
ing master  was  not  to  be  received  except  upon  the  good 
report  of  the  master  himself,  and  not  until  he  was  ap- 
proved by  the  master.  Bingham  adds,  that  "  Experience 
proved  it  to  be  a  useful  rule ;  for  it  both  made  the  mas- 

1  De  Corona  Militis,  c.  xiii,  quoted  in  Neander's  Hist,  of  Church,  vol. 
i,  269.  (2d  Amer.  Ed.)  »  Quoted  by  Neander,  as  above. 

8  Lib.  de  Mortalitate,  quoted  by  Neander,  p.  258.  Locenius,  a  com- 
mentator on  Swedish  law,  speaking  of  the  cessation  of  slavery,  about 
the  year  1295,  says,  "Hanc  que  id  suasisse  inter  alios,  rationem  quod 
servatore  nostro  vendito,  omnes  redempti  fuerint  Christiaui,  et  liberti 
<acti."  Quoted  by  Potg.  Lib.  I,  cap.  iii,  \  39. 


CV111  HISTORICAL    SKETCH    OF    SLAVERY. 

ters  zealous  for  the  salvation  of  their  slaves,  as  we  have 
seen  in  the  African  negro  mentioned  in  Fulgenthis,  and 
also  made  the  slaves  sincere  in  their  professions  and  pre- 
tences to  ^eligion,  when  they  knew  they  could  not  be 
accepted  as  real  converts,  worthy  of  baptism,  without 
the  corroborating  testimony  of  their  masters.1  The  same 
Constitutions  provided  that  no  slave  should  be  ordained 
among  the  clergy,  except  by  the  consent  of  his  master ; 
and  the  canons  of  several  councils  reiterated  the  same 
injunction.  The  Council  of  Eliberis  went  further,  and 
provided  that  the  slave  of  a  heathen  master  should  not 
be  ordained  even  if  he  was  manumitted.2  So  St.  Basil 
forbade  the  marriage  of  slaves  without  the  consent  of 
their  masters,  ?nd  declared  it  to  be  fornication ;  and  if 
a  woman,  that  si:  3  differed  nothing  from  a  harlot."3 

That  the  true  "  heavenly  freedom"  was  open  to  all, 
bond  or  free,  was  inculcated  by  all  the  Fathers.  St. 
Justin  illustrates  this  idea  by  the  history  of  Jacob : 
"  Jacob  served  Laban  for  the  spotted  and  particolored 
of  the  flock,  and  so  Christ  submitted  to  the  vilest  servi- 
tude for  every  form  and  variety  of  the  human  race,  pur- 
chasing them  with  his  divine  blood,  by  the  mystery  of 
the  cross."4  St.  Jerome  declares  "  that  we  are  all  born 
alike,  kings  and  paupers  ;  we  all  die  alike — the  same  is 
the  condition  of  all;"5  but  that  "  enfranchisement  exists 
in  the  knowledge  of  the  truth,  so  that  there  will  be  no 
perfect  liberty  until  the  truth  shall  appear  unclouded  at 
the  judgment  day."6  St.  Ambrose  develops  this  thought 
more  at  large :  "  He  is  a  slave  who  has  not  a  pure  con- 
science, who  is  cast  down  by  fear,  entangled  by  plea- 
sure, governed  by  passions,  excited  by  anger,  over- 

1  Antiquities  of  Christian  Church,  vol.  i,  502.     A  full  exposition  ot 
these  Constitutions  can  be  found  in  Chevalier  Bunsen's  work,  Hippo- 
lytus  and  his  Age,  vol.  ii. 

2  Bingham's  Antiquities,  &c.,  vol.  i,  147.    3  Ibid.  vol.  ii,  985. 

4  Dial,  cum  Trupho.  134.  5  Hieron.  in  Ps.  Ixxxi,  \  4. 

6  Hieron.  Comm.  in  Ps.  clvi. 


SLAVERY   IN   EUKOPE    IN   THE    MIDDLE   AGES.  C1X 

whelmed  by  grief.  .  .  The  man  bound  by  his  vices 
has  many  masters  in  himself.  .  .  He  who  has  power 
over  his  own  conduct  is  perfectly  free,  for  he  does  every- 
thing with  prudence,  and  lives  as  he  ought  "o  live — he 
alone  is  free."1  So,  in  another  place,  "  Servile  est  omne 
pecatum,  libera  est  innocentia."3  St.  Augustine  exhorts 
the  slave  to  serve  his  master  according  to  the  flesh,  for 
in  so  doing  for  Christ's  sake,  he  serves  God,  and  to  serve 
God  is  true  liberty.3 

St.  Chrysostom  goes  still  farther,  and  exhorts  servants 
not  to  seek  temporal  liberty,  even  if  they  could  obtain 
it,  as  their  bodily  bondage  caused  their  spiritual  liberty 
to  be  more  pre-eminent  and  shining.4 

The  Popes  of  subsequent  days  enforced  the  same 
views,  both  by  precept,  as  is  fully  seen  in  Gregory  the 
Great's  book,  Pastoralis  Curse,  Admonition  VI,  and  by 
their  acts,  holding  and  buying  and  transferring  slaves.5 

M.  Wallon  justly  observes,  that  the  Christian  Fathers 
and  Church  did  not  pretend  to  undertake  the  labor  of 
working  out  the  abolition  of  slavery :  "  Another  graver 
and  more  urgent  labor  in  every  respect,  in  their  view, 
was  the  enfranchisement  of  their  souls.  In  the  short 
journey  of  life,  where  we  take  and  leave  our  bodies  mat- 
ters not.  The  soul  alone,  born  for  eternity,  gives  inte- 
rest to  the  question  of  liberty  and  slavery."  Such  was 
their  view  of  Christian  duty.6 

1  De  Jacob,  et  vita  beata,  Lib.  II,  c.  iii,  \  12. 

2  De  Joseph,  IV,  §§19,  20. 

8  "Servire  Deo  regnare  est."  Cited,  with  many  others,  by  Wallon, 
Part  III,  ch.  viii.  Speaking  of  the  liberation  of  the  Jewish  servants, 
he  says,  "  Ne  servi  Christian!  hoc  flagitarent  a  dominis  suis,  apostolica 
auctoritas  jubet  servos  dominis  suis  esse  subditos,  ne  nomen  Dei  blas- 
phemetur."  Qua3st.  in  Ex.  Ixxvii.  *  In  Genes.  Serm.  v. 

6  Bishop  England's  Letters  to  John  Forsyth,  tracing  the  whole  history 
of  the  Catholic  Church,  in  reference  to  slavery. 

6  Hist,  de  1'Escl.  dans  1'Ant.  Part  III,  ch.  viii.  As  late  as  the  seven- 
teenth century,  Bossuet,  the  great  pulpit  orator  of  the  world,  declared 
that  to  condemn  slavery  "  was  to  condemn  the  Holy  Spirit,  who  com- 


CX  HISTORICAL   SKETCH   OF   SLAVERY. 

While  this  was  the  teaching  of  the  Fathers,  and  such 
was  the  effect  of  the  principles  of  Christianity,  yet  it  does 
not  appear  that  the  Church  was  at  all  forward  in  manu- 
mitting her  slaves.  The  villains  upon  the  Church  lands 
were  among  the  last  emancipated.1 

Villanage  has  never  been  entirely  extinct  in  Germany. 
The  distinction  between  the  villain  and  the  ordinary 
peasant  is  more  in  name  than  in  fact.  Indeed,  the  situa- 
tion of  the  peasantry  of  the  present  day,  differs  but 
little  from  their  condition  when  they  were  coloni  and 
rustici.  Mr.  Hallam,  speaking  of  the  latter,  says : 
"  Even  where  they  had  no  legal  title  to  property,  it  was 
accounted  inhuman  to  divest  them  of  their  little  pos- 
session (the  peculium  of  the  Roman  law) ;  nor  was 
their  poverty  perhaps  less  tolerable  upon  the  whole,  than 
that  of  the  modern  peasantry  in  most  countries  of  Eu- 
rope."" 

In  Gaul,  the  feudal  system  had  a  more  extensive  and 
general  sway,  and  continued  for  a  longer  time,  than  in 
Germany.  Under  that  system,  the  mass  of  the  people 
were  bondmen — not  absolute  slaves,  perhaps,  but  far 
from  exercising  the  privileges  of  freemen.  Prior  to 
that  system  the  bondmen  in  Gaul  were  numerous. 
After  the  invasion  of  the  Goths,  the  Burgundians  and 
Franks,  who  possessed  themselves  of  different  portions 
of  Gaul,  the  feudal  system  with  its  servitudes  became 
permanently  fixed.  The  frequent  conquests  of  Gaul, 
and  the  consequent  number  of  captives,  swelled  greatly 
the  list  of  bondmen,  and  the  subsequent  intestine  wars 
among  the  conquering  hordes  themselves,  rendered  ser- 
vitudes more  general  in  France  than  in  any  other  of  the 
European  countries.8  As  these  conquering  nations  were 

manded  all  slaves,  by  the  mouth  of  St.  Paul,  to  remain  in  their  estate, 
and  did  not  force  their  masters  to  enfranchise  them."  Cinquieme  Aver- 
tiss.  aux  Protestants,  2  50. 

1  Hallam's  Mid.  Ages,  Pt.  II,  ch.  ii.  «  Ibid. 

3  Montesq.  Esp.  des  Lois,  Lib.  XXX,  ch.  ii ;  Histoire  des  Paysans,  by 
Eugene  Bonnemere. 


SLAVERY   IN   EUROPE   IX   THE   MIDDLE   AGES.  CXI 

of  Germanic  origin,  and  carried  "with  them  their  laws 
and  customs,  it  is  unnecessary  to  enter  into  a  detailed 
view  of  the  condition  of  the  bondmen  of  Gaul.  Miche- 
let,  speaking  of  the  days  of  Charlemagne,  says  :  "  Sla- 
very, mitigated  it  is  true,  is  greatly  increased.  Charle- 
magne gratifies  his  master,  Alcuin,  with  a  farm  of 
20,000  slaves.  The  nobles  daily  forced  the  poor  to  give 
themselves  up  to  them,  body  and  goods.  Slavery  is  an 
asylum  where  the  freeman  daily  takes  refuge."1 

The  condition  of  the  bondmen  in  France  was  more 
onerous  than  in  Germany.  In  both,  the  burthen  of 
raising  the  revenue  for  the  support  of  government,  fell 
upon  them ;  one  of  the  privileges  of  a  freeman,  was 
freedom  from  taxation.2  Gibbon  says,  "  The  Goth,  the 
Burgundian,  or  the  Frank,  who  returned  from  a  success- 
ful expedition,  dragged  after  him  a  long  train  of  sheep, 
of  oxen,  and  of  human  captives,  whom  he  treated  with 
the  same  brutal  contempt.  The  youths  of  an  elegant 
form  and  ingenuous  aspect,  were  set  apart  for  the  domes- 
tic service ;  a  doubtful  situation,  which  alternately  ex- 
posed them  to  the  favorable  or  cruel  impulse  of  passion. 
The  useful  mechanics  and  servants  employed  their  skill 
for  the  use  or  profit  of  their  master.  But  the  Roman 
captives  who  were  destitute  of  art,  but  capable  of  labor, 
were  condemned,  without  regard  to  their  former  rank,  to 
tend  the  cattle  and  cultivate  the  land  of  the  barbarians." 
"  An  absolute  power  of  life  and  death  was  exercised  by 
these  lords ;  and  when  they  married  their  daughters,  a 
train  of  useful  servants,  chained  on  the  wagons  to  pre- 
vent their  escape,  was  sent  as  a  nuptial  present  into  a 
distant  country."  He  adds  :  "  From  the  reign  of  Clovie, 
during  five  successive  centuries,  the  laws  and  manners 
of  Gaul  uniformly  tended  to  promote  the  increase  and 
to  confirm  the  duration  of  personal  servitude.  Time  and 

1  Hist,  of  France,  vol.  i,  ch.  ii ;  see  also  Gibbon's  Decline,  &c.,  ch. 
xxiviii.  *  Montesq.  Lib.  XXX,  ch.  15. 


CX11  HISTORICAL   SKETCH   OF   SLAVERY. 

violence  almost  obliterated  the  intermediate  ranks  ol 
society,  and  left  an  obscure  and  narrow  interval  between 
tlie  noble  and  the  slave.  This  arbitrary  and  recent  divi- 
sion has  been  transformed  by  pride  and  prejudice,  into  a 
national  distinction,  universally  established  by  the  arms 
and  the  laws  of  the  Merovingians.  The  nobles,  who 
claim  their  genuine  or  fabulous  descent  from  the  inde- 
pendent and  victorious  Franks,  have  asserted  and  abused 
the  indefeasible  right  of  conquest,  over  a  prostrate  crowd 
of  slaves  and  plebeians,  to  whom  they  imputed  the  ima- 
ginary disgrace  of  a  Gallic  or  Eoman  origin."1  Miche- 
let,  describing  the  peasants  of  the  fourteenth  centuiy, 
says :  "  It  did  not  take  long  to  make  an  inventory  of  the 
peasant's  property:  meagre  cattle,  wretched  harness, 
plough,  cart,  and  some  iron  tools.  Household  goods  lie 
had  none.  He  had  no  stock,  save  a  small  quantity  of  seed- 
corn.  These  things  taken  and  sold,  what  remained  for 
the  lord  to  lay  his  hands  upon  ? — the  poor  devil's  body,  his 
skin.  Something  more  was  tried  to  be  squeezed  out  of 
him.  The  boor  must  have  some  secret  store  in  a  hiding- 
place.  To  make  him  discover  it,  they  did  not  spare  his 
carcass  ;  his  feet  were  warmed  for  him.  At  any  rate  they 
had  no  mercy  on  the  fire  and  iron."2 

The  rustic  serf  differed  somewhat  from  the  slave.  He 
could  not  be  sold  for  his  master's  debt,  nor  could  he  be 
separated  from  the  land  to  which  he  was  attached.  He 
had  a  peculium,  or  rather  the  right  to  have  one.  If, 
however,  he  sought  to  fly  from  the  rigors  of  his  situation, 
the  reclaimed  fugitive  became  a  pure  slave.3  The  cruelty 
of  the  lord's  treatment  equalled  anything  related  of  the 
Roman  masters.  The  Due  de  Soissons  caused  to  be 
buried  alive  a  male  and  a  female  serf,  who  intermarried 

1  Decline  and  Fall  of  Roman  Emp.  ch.  xxxviii. 

2  Hist,  of  France,  Bk.  VI,  ch.  iii ;  see  also  Dr.  Robertson's  u  View  of 
the  Progress  of  Society  in  Europe;"  Edwards's  Ecclesiastical  Jurisdic- 
tion, §  36  ;  Bonnemere's  Histoire  des  Paysans,  Introduction. 

3  Bonnemere,  p.  5. 


SLAVERY   IN   EUROPE   IN   THE   MIDDLE   AGES.        CXHl 

without  his  consent.  At  his  feasts  he  amused  himself 
by  forcing  a  naked  serf  to  hold  between  his  legs  a  flaming 
torch  until  it  should  be  extinguished,  repressing  his  cries 
and  his  moving  by  threatening  death  with  a  sword.1  The 
low  estimate  placed  upon  their  value,  may  be  inferred 
from  the  fact  that  the  Bishop  of  Avranches  gave  five 
women  and  two  men  for  a  spirited  horse,  on  which  to 
enter  his  diocese.3  The  slaves  were  bought  and  sold  as 
other  choses ;  and  there  are  manuscripts  in  existence, 
showing  the  exchange  of  the  half  of  a  woman  for  the 
half  of  a  man.3 

The  mainmorte  of  the  French  had  its  origin  in  the 
custom  of  the  master  to  cut  off  the  right  hand  of  the 
deceased  serf  and  presenting  it  to  the  lord,  which  evi- 
dence of  dominion  entitled  him  to  the  goods  and  effects 
of  the  deceased,  to  the  exclusion  of  his  children.  Even 
the  religious  lords  sometimes  nailed  these  hands  over 
the  doors  of  their  towers,  by  the  side  of  the  heads  of 
wild  animals  taken  in  the  chase.4  The  miserable  condi- 
tion of  the  people,  combined  with  a  superstitious  piety, 
multiplied  largely  the  slaves  of  the  religious  houses. 
The  formulas  of  the  ceremony,  on  receiving  such  volun- 
tary slaves,  are  still  extant.  The  Church  encouraged 
this  practice,  and  in  A.  D.  847,  procured  a  capitulary,  by 
which  every  freeman  was  required  to  select  a  lord,  under 
whose  protection  to  place  himself.5  The  serfs  bore 
around  their  necks  a  collar,  upon  which  was  inscribed 
the  master's  name.6 

The  children  of  slaves  were  frequently  divided  between 
the  owners  of  the  husband  and  wife ;  sometimes  the 
former  taking  the  males,  and  the  latter  the  females. 
Some  curious  agreements,  in  reference  to  the  division  of 

1  Bonnemere,  p.  37,  citing  Greg,  de  Tours,  for  his  authority,  who  adds, 
that  the  Christian  masters  were  equally  cruel ;  naming  a  Bishop  of  Mans, 
Bertram,  whose  acts  were  of  the  same  character. 

2  Bonneraere,  37.  8  Ibid.  38. 

*  Ibid.  39.  6  Ibid.  51.  6  Ibid. 


CX1V  HISTORICAL   SKETCH   OF   SLAVERY. 

the  children  are  still  in  existence.  The  most  abominable 
feature  of  this  state  of  slavery,  was  what  was  called  the 
"right  of  prelibation,"  which  was  the  lord's  privilege  of 
lying  with  the  female  vassal  on  the  first  night  after  her 
marriage.  This  custom  seems  to  have  prevailed,  at  one 
time,  in  Scotland,  England,  Germany,  Piedmont,  and 
most  parts  of  Europe.1  To  make  this  custom  more  hor- 
rible, the  husband  was  required  to  carry  his  espoused  to 
her  bed  of  dishonor.2  The  remains  of  this  custom  are 
still  seen  in  certain  gifts  required  of  the  villain  on  his 
marriage,  in  various  countries  in  Europe,  being  origi- 
nally a  composition  for  this  right.3 

The  art  of  tormenting  was  carried  to  a  degree  of  re- 
finement seldom  equalled,  even  in  the  imagination  of 
those  depicting  the  horrors  of  the  Inquisition.  "  The 
fire,  the  sword,  the  pit,  the  quartering,  the  wheel,  the 
sack,  the  axe,  the  fork,  the  gibbet,  had  no  secrets  from 
him  (the  lord).  He  knew  how  to  draw,  to  prick,  to  rack, 
to  break  the  teeth,  to  burn  the  eyes,  to  cut  off  the  hands, 
the  feet,  nose,  ears.  He  knew  how  to  castrate,  to  dis- 
member, to  lash,  to  break  on  a  wheel,  to  castigate,  to 
flay  alive,  to  boil,  to  roast,  and  with  wise  deliberation."4 

That  people,  thus  oppressed,  should  frequently  revolt 
and  inflict  vengeance  upon  their  tyrants,  is  not  surpris- 
ing. Their  desperation  compensated  for  their  want  of 
discipline,  and  hence  we  are  not  surprised  at  their  suc- 
cess for  a  season.  The  Bagaudan  conspiracy  was  a  most 
remarkable  instance.  They  became  masters  of  several 
of  the  rural  districts,  burnt  several  towns,  and  committed 
other  depredations.5  Almost  the  same  scenes  were  re- 

1  Bonnemere,  57,  et  seq. 

2  "  Maritus  ipse  femora  nuptae  aperiet,  ut  dictus  dominus  primum  flo- 
rein  primitiasque  delibet  facilius."     Ibid.  3  Ibid. 

4  Bonnemere,  63. 

5  Michelet's  Hist,  of  France,  Bk.  I,  ch.  iii.     A  full  history  may  be 
found  in  Bonnemere's  Histoire  des  Paysans.   Introduction,  ch.  ii. 


SLAVERY   IN    EUROPE   IN   THE   MIDDLE   AGES.         CXV 

enacted  in  the  fourteenth  century,  in  the  celebrated  re- 
volt of  the  peasants,  known  as  the  "  Jacquerie.'n 

The  names  of  the  servile  classes  in  France  varied 
according  to  their  grades  from  the  seneschal  and  mareschal, 
the  chief  slaves,  down  to  the  gens  de  corps,  who  were 
classed  with  the  cattle,  as  levant  et  couchant.  The  inter- 
mediate grades,  between  absolute  liberty  and  absolute 
slavery,  were  infinite.2 

The  wars  of  the  Christians  and  Moors  in  France  and 
the  Peninsula,  increased  largely  the  number  of  slaves. 
France  and  Italy  were  filled  with  Saracen  slaves.  At 
the  same  time,  the  Jews  of  Lyons  and  Verdun  were  fur- 
nishing Christian  slaves  to  their  Saracen  customers.3 

On  the  other  side,  the  wars  of  the  German  and  Sla- 
vonic tribes  gave  to  the  slave-trade  its  greatest  activity, 
and  filled  the  neighboring  nations  with  so  many  of  the 
Slavonic  captives,  as  to  transfer  their  name  "  slaves,"  to 
servitude  itself.4 

From  the  sixth  to  the  fourteenth  centuries  there  was 
very  little  improvement  in  the  condition  of  the  serfs  of 
France.  In  1315,  Louis  le  Hutin,  to  render  famous  his 
reign,  promulgated  a  celebrated  ordinance  for  the  en- 
franchisement of  royal  serfs;  wherein,  after  declaring, 
by  the  law  of  nature,  all  men  are  born  free,  and  that  the 
kingdom  of  the  Franks  should  comport  with  its  name 
and  be  a  kingdom  of  freemen,  as  an  example  to  other 
seigneurs,  he  ordered  his  officers  to  grant  freedom  to  his 
serfs,  "upon  certain  composition,  whereby  sufficient 
compensation  shall  be  made  to  us  for  the  emoluments 

.  !  See  a  graphic  description  of  this,  by  Michelet,  Hist,  of  France,  Bk. 
VI,  ch.  iii. 

8  For  a  full  and  accurate  view  of  this  subject,  see  Michelet,  Origines  du 
droit  fran$ais,  276 ;  Du  Cange  Gloss,  v.  Colonus,  Mancipia,  Accola,  &c. 
Guizot,  Essais  sur  1'Histoirede  France,  p.  105;  Giraud,  Histoire  du  droit 
frangais,  torn,  i,  art.  v  ;  Bonnemere,  Histoire  des  Paysans,  Introduction. 

3  Bancroft's  United  States,  i,  162,  164,  and  authorities  there  cited. 

4  Bancroft's  United  States,  i,  162. 


CXV1  HISTORICAL   SKETCH   OF   SLAVERY. 

arising  to  us  and  our  successors  from  their  said  servi- 
tude." The  result,  as  might  have  been  expected,  was 
much  honor  to  the  royal  munificence  and  justice,  and 
but  little  amelioration  to  the  serf.1 

"With  very  considerable  abatement  in  rigor,  the  feudal 
system,  and  the  consequent  oppression  of  the  peasant, 
continued  in  France  until  the  revolution  of  1789.  "  Fiefs 
and  the  feudal  system,"  says  M.  Troplong,  "  had  intro- 
duced in  France  a  noblesse,  the  members  of  which  have, 
even  to  the  latest  times,  preserved  privileges  very  oner- 
ous to  the  people,  and  unjust  prerogatives  very  humilia- 
ting to  the  balance  of  the  nation."2  One  can  almost 
excuse  the  horrors  of  the  revolution,  when  it  is  remem- 
bered, to  use  the  figure  of  Macaulay,  that  the  Devil  of 
Tyranny  always  tears  and  rends  the  body  which  it  leaves. 
Certain  it  is,  that  a  people  unjustly  enslaved  by  masters, 
in  nowise  their  superiors,  acquired  thereby  for  the  first 
time  their  enfranchisement.  The  great  Napoleon,  it  is 
true,  after  the  Empire,  established  a  new  and  even  an 
hereditary  nobility.  But  he  exhibited  the  sagacious 
wisdom  of  his  master  mind  even  in  this ;  for  while  he 
rewarded  the  brave  and  virtuous,  and  stimulated  the 
pride  and  emulation  of  their  posterity,  he  withheld  from 
the  new  noblesse  those  prerogatives  and  powers  which 
oppressed  the  people.  The  French  people  objected  not 
to  the  display  and  pageantry  attendant  upon  a  titled 
aristocracy;  and  when  unaccompanied  by  oppression, 
they  were  not  distasteful  to  them. 

Sicily,  Italy,  and  Venice,  for  many  ages  furnished 
marts  to  the  slave-dealer.  Venetian  ships  were  engaged 
in  the  commerce  long  after  Venetian  laws  had  prohibited 
it;  and  never  did  the  trade  therein  fully  cease,  until 
treading  the  deck  of  an  argosy  of  Venice  was  declared 
by  law  to  be  itself  freedom.3 

1  Guizot's  History  of  Civilization,  Lecture  viii. 

2  Droit  civil  fran$ais,  Liv.  I,  Int.  §  195. 

8  Bancroft's  United  States,  i,  163,  and  authorities  there  cited. 


SLAVERY  IN   EUROPE   IN   THE   MIDDLE   AGES.      CXV11 

Slavery  continued  in  Poland  so  long  as  it  remained  an 
independent  state ;  the  slaves  were  mostly  prsedial,  living 
upon  their  master's  land,  furnished  by  him  with  agri- 
cultural implements  and  cattle,  and  bound  to  labor  for 
him  a  specified  portion  of  their  time.  They  were  al- 
lowed, by  their  lords,  to  own  and  possess  personal  pro- 
perty, and  thus  acquired  occasionally  a  comfortable  com- 
petency.1 

When  Eussia  became  master  of  most  of  her  soil,  the 
condition  of  the  serfs  was  not  improved,  as  the  slavery 
of  Russia  is  as  arbitrary  and  oppressive  as  that  of  any 
portion  of  the  world.  It  has  existed  there  ever  since  the 
Muscovite  Empire  has  been  known,  and  has  undergone, 
in  the  progress  of  time,  but  little  amelioration.  It  in- 
cludes the  vast  majority  of  the  population  of  this  exten- 
sive domain,  and  presents  but  little  prospect  of  change 
or  improvement.  Besides  yielding  passive  obedience, 
the  Russian  slave  must  uncover  himself  in  the  presence 
of  his  master ;  must  succor  him  when  attacked ;  must 
not  marry  without  his  permission ;  must  make  no  com- 
plaint against  his  master,  except  under  the  severest 
penalties,  if  it  be  decided  against  him ;  and  must  sub- 
mit to  any  labor  or  punishment  which  his  master  may 
inflict  upon  him.  The  master  may  dispose  of  his  serf 
in  any  manner  he  pleases,  sell  or  mortgage  him,  transfer 
him  from  one  estate  to  another,  or  to  his  household,  or 
transport  him  to  Siberia.  May  inflict  any  punishment 
he  pleases  upon  him.  May  seize  all  of  his  earnings,  and 
appropriate  to  his  own  use.  However,  by  the  indulgence 
of  their  masters,  some  of  the  serfs  acquire  considerable 
estates. 

Emancipation  is  allowed  by  law ;  and  one  article  pro- 
vides, that  "  an  emancipated  serf  can  never  again  become 
a  slave,  but  he  may  be  compelled  to  serve  as  a  soldier 
all  his  life."  But  emancipation  is  no  blessing  to  the 

1  See  Dickens's  Household  Words,  i,  342. 


CXV111  HISTOEICAL   SKETCH   OF  SLAVERY. 

Russian  serf.  There  exists  no  intermediate  grades  be- 
tween the  nobles  and  the  serfs.  There  is  no  opening  for 
rewarding  industry  and  probity ;  no  stimulus  for  energy 
and  integrity.  The  serf,  bond  or  free,  is  still  a  serf,  con- 
fined to  the  occupation  of  a  serf,  without  hope  of  a 
better  condition.  As  free,  he  is  liable  to  starvation, 
while  otherwise  his  master  must  provide  food  for  him  : 
and  hunger  and  famine  are  realities  among  the  Russian 
serfs.  It  is  not  surprising  then,  that  they  are  contented 
with  their  lot  and  seek  no  change.  They  are  indolent, 
constitutionally,  and  indulge  it  at  their  master's  expense. 
They  are  mendacious,  beyond  the  negro  perhaps,  and 
feel  no  shame  at  detection.  Like  him,  too,  they  have 
no  providence  for  the  future,  and  no  anxiety  about  it. 
They  are  filthy  in  their  persons,  and  in  their  rude  huts ; 
exhibiting,  in  all  their  handiworks,  the  ignorance  of  a 
savage  and  the  stupidity  of  a  dolt.1 

In  Turkey,  and  wherever  Islamism  prevails,  slavery  is 
a  part  of  the  religion  of  the  people.  The  slave-market 
at  Constantinople  is  always  crowded  with  both  blacks 
and  whites;  and  in  the  same  stall  maybe  seen  the  negro 
from  Sennaar  or  Abyssinia,  and  the  beautiful  Circassian 
girl,  sold  by  her  parents  to  avoid  poverty  and  misery. 
Except  to  the  Christian  slave,  the  Turk  is  not  in  practice 
a  cruel  master,  though  his  power  is  almost  absolute.  It 
is  said  that  other  Europeans,  residing  in  Turkey,  are  in- 
variably more  cruel  masters  than  the  Turks  themselves. 
Young  and  promising  boys  are  frequently  purchased  by 
the  sovereign,  to  be  reared  and  educated  for  officers  of 
state ;  and  the  Circassian  beauties  usually  find  a  home 
in  the  harem  of  a  wealthy  proprietor.  The  right  of  re- 
demption, too,  is  strictly  enjoined  by  the  Koran  ;  for  all 
slaves  who  properly  conduct  themselves,  a  writing  is 

1  In  this  description  of  Russian  serfdom,  I  have  followed,  chiefly,  the 
work  of  Germain  de  Ligny,  "  The  Knout  and  the  Russians,"  Art.  viii, 
"  Slavery." 


SLAVERY   IN    EUROPE   IN   THE    MIDDLE   AGES.       CX1X 

given  to  them  fixing  their  value,  and  when  the  sum  is 
tendered,  the  master  is  bound  to  accept  it.1 

A  few  remarks  as  to  the  condition  of  the  peasantry  at 
the  present  time,  will  properly  close  our  view  of  slavery 
on  the  continent  of  Europe.  Except  in  Turkey  and 
Russia,  slavery  in  name  does  not  exist  at  this  day.  In 
these  we  have  already  noticed  the  present  condition  of 
the  servile  classes.  It  is  due  to  the  Emperor  Nicholas 
of  Eussia  to  say,  that  he  emancipated  many  of  his  serfs, 
as  an  experiment  to  test  the  success  of  freedom  granted 
to  them.  The  present  Emperor  is  seeking  to  extend  the 
experiment.  "Without  a  radical  change  in  the  constitu- 
tion of  the  state,  offering  greater  inducements  for  effort 
on  the  part  of  the  people  ;  and  perhaps  also  a  change 
still  more  difficult  to  produce,  that  of  the  character  of 
the  serf  himself,  no  bright  hopes  need  be  cherished  of 
any  material  improvement  in  the  condition  of  Russian 
slavery. 

In  Hungary  and  Transylvania,  the  serfs  rise  but  little 
above  a  state  of  slavery.  Involuntary  and  vile  personal 
services  to  their  lords  are  still  enforced  ;  corporal  pun- 
ishment, at  the  will  of  the  lord,  is  still  allowed  in  the 
latter  country,  and  existed  in  the  former  till  the  year 
1835.  The  Urbarium  of  Maria  Theresa,  the  Magna 
Charta  of  the  peasantry,  with  all  its  boasted  reform,  did 
not  elevate  them  to  the  position  of  base  villanage  in 
England.2 

While  slavery  in  name  is  extinct,  slavery  in  fact  exists 
on  the  continent,  and  must  continue  to  exist,  until 
enlightenment  shall  have  driven  intellectual  darkness 
from  the  earth,  and  religion  shall  have  changed  so  com- 
pletely the  heart  of  man,  that  every  one  shall  be  con- 

1  See  Stephens's  Travels  in  Greece,  Turkey,  &C.,  voL  i,  ch.  xiii;  Copley's 
Hist,  of  Slavery,  p.  92.     For  description  of  slave-market,  see  Byron's 
Don  Juan,  Canto  iv  and  v. 

2  For  an  interesting  and  graphic  view  of  the  peasantry  of  Hungary  and 
Transylvania,  see  Paget's  work,  5,  178,  et  seq. ;  ii,  143,  et  seq. 


CXX  HISTORICAL   SKETCH   OP   SLAVERY. 

tented  to  occupy  that  sphere  for  which  his  nature  fits 
him. 

The  labor  performed  by  the  lower  classes,  is  servile 
labor.  In  name,  it  is  voluntary,  in  reality,  it  is  involun- 
tary, forced  by  a  master  more  relentless  than  their  feudal 
lords, — stern  necessity.  The  female  slavery  described 
by  Professor  Silliman  in  his  Second  Visit  to  Europe,  as 
witnessed  by  himself  in  Saxony,1  had  no  parallel  among 
the  ancient  Germans,  whose  slavery  we  have  been  exam- 
ining. When  population  becomes  dense,  and  the  num- 
bers depending  upon  their  labor  for  their  food  increase, 
the  price  of  labor  can  have  but  one  standard,  to  which 
it  of  necessity  comes:  that  is,  the  smallest  possible 
amount  upon  which  the  laborer  can  feed  and  clothe  him- 
self and  such  of  his  family  as  are  absolutely  helpless. 
Another  result  is,  that,  as  the  price  of  labor  decreases, 
the  age  at  which  the  child  shall  be  considered  capable 
to  toil  for  his  own  support  correspondingly  decreases  ; 
and  the  age  at  which  the  old  shall  be  considered  exempt 
from  labor,  in  the  same  ratio  increases.  Necessity,  too, 
forces  the  laborer  to  submit  to  an  amount  of  labor  to 
which  his  physical  frame  is  incompetent,  and  hence,  laws 
are  necessary  to  protect  him  from  such  exactions.  An- 
other result  is,  that,  despairing  of  an  honest  support,  or 
yielding  to  natural  indolence,  the  number  of  paupers 
frightfully  increases,  and  with  it  the  number  of  thefts 
and  offences  of  that  character.  Michaelis,  a  learned 
German  writer,  after  considering  the  question,  "  whether 
it  be  better  to  have  slavery  or  not  ?"  sums  up  thus :  "  To 
strike  a  balance,  then,  between  the  advantages  and  dis- 
advantages of  slavery,  is  a  difficult  matter ;  but  upon 
the  whole,  when  I  consider  the  severity  of  our  numerous 
capital  condemnations  for  thefts,  and  our  insecurity  after 
all  against  its  artifices ;  when  I  consider  that  the  punish- 
ment of  our  culprits  only  serves  to  make  them  a  burden 

1  Vol.  ii,  p.  34L 


SLAVERY   IN   EUROPE   IN   THE   MIDDLE   AGES.        CXX1 

to  our  neighbors,  who  in  return  land  theirs  upon  us,  and 
that  it  thus  becomes  a  sort  of  nursery  for  robbers,  or,  at 
any  rate,  for  vagabonds  and  beggars,  who  are  the  pest 
of  every  country,  I  am  often  led  to  think  that  the  es- 
tablishment of  slavery  under  certain  limitations  would 
prove  a  profitable  plan."1 

1  Commentaries  on  the  Laws  of  Moses,  Art.  cxxii;  see  also  Silliman's 
Second  Visit,  vol.  i,  p.  233 ;  vol.  ii,  p.  7,  9,  11 ;  Prime's  Travels  in  Europe 
and  the  East,  i,  361,  394;  ii,  8,  47. 


CHAPTER  Yin. 

SLAVERY  IN   GREAT   BRITAIN. 

A  GLANCE  at  the  history  of  slavery  in  Great  Britain 
must  suffice  us. 

.  The  ocean-bound  isle  has  not  been  exempt  from  the 
common  fate  of  the  nations  of  the  world. 

Of  the  ancient  Britons  and  their  social  system  but 
little  is  known.  They  were  a  simple,  rude,  and  warlike 
people ;  "satisfied  with  a  frugal  sustenance  and  avoiding 
the  luxuries  of  wealth."1  They  were  governed  by  a 
large  number  of  petty  chiefs  or  lords,  by  whom  the  peo- 
ple were  not  oppressed  ;  "  for,"  says  an  old  writer,  "  it 
is  a  certain  maxim,  that  though  great  nations  may  be 
upholden  by  power,  small  territories  must  be  maintained 
by  justice."3  In  fact,  they  seemed  unusually  free,  for 
Dion,  in  the  Life  of  the  Emperor  Severus,  says,  "  that,  in 
Britain,  the  people  held  the  helm  of  government  in  their 
own  power."3  Their  wealth  consisted  of  cattle,  and  they 
might  almost  be  termed  a  nomadic  race,  their  towns 
consisting  of  mere  huts,  temporary  in  their  structure  and 
occupation.4  Among  such  a  people  it  is  more  than  pro- 
bable slavery,  if  it  existed  at  all,  was  mild,  and  similar 
to  that  of  the  Jewish  patriarchs. 

The  Romans,  with  their  invasion,  introduced  their 
system  of  slavery.  Many  of  the  conquered  Britons  were 

1  Diodorus,  Lib.  V,  p.  301. 

2  Discourse  on  Government,  by  Nath'l  Bacon,  p.  2. 

3  Cited  by  Bacon,  as  above. 

4  Turner's  Anglo-Saxons,  Bk.  I,  ch.  v,  pp.  63,  64. 


SLAVERY   IN   GREAT   BRITAIN.  CXX111 

exposed  in  the  slave-market  of  Rome.1  The  rule  of  the 
Saxons  did  not  change  the  social  system  of  Britain  in 
this  respect.  Among  no  people  were  the  orders  or 
classes  more  distinctly  divided.  The  edhiling,  or  nobi- 
lity; ihefrilingi,  or  freed  slaves;  and  the  lazzi,  or  slaves, 
were  among  their  earliest  distinctions.1  The  slaves  are 
mentioned  by  other  names,  in  the  ancient  laws,  such  as 
theow,  thrcel,  men,  and  esne.3  There  were  great  numbers 
of  these  slaves,  being  a  large  majority  of  the  population. 
Single  individuals  owned  large  numbers.  Alcuin,  an 
Anglo-Saxon  abbot,  had  ten  thousand. 

The  usual  sources  of  slavery  were  recognized  among 
the  Saxon  laws.  Birth,  sale,  captivity  in  war,  the  pen- 
alty for  crime,  are  all  mentioned  as  legitimate  sources  of 
slavery.  From  the  laws  of  Henry  I,  it  would  appear  that  a 
great  variety  of  causes  of  slavery  were  recognized  at  that 
time  :  "  Servi  alii  natur^,  alii  facto,  et  alii  empcione,  et 
alii  redempcione,  alii,  sua  vel  alterius  dacione  servi,  et  si 
qui  sunt  alije  species  hujusmodi."  He  reduced  them  all 
to  two,  "  servi,  alii  casu,  alii  genituraV'4 

The  condition  of  the  Saxon  slave  was  that  of  pure 
slavery.  His  very  existence  was  merged  in  the  master, 
so  that  the  maxim  of  their  law  was,  "  omne  damnum 
quod  servus  fecerit,  dominus  emendet."  The  master 
could  inflict  corporal  punishment  ad  libitum;  and  while 
their  laws  prescribed  the  "  wegreaf"  or  "  weregild"  of 
a  tfteoiv,  when  slain  by  a  stranger,  no  punishment  was 
affixed  for  his  homicide  by  his  master.5  He  was  the 

1  They  were  considered,  in  Rome,  as  stupid.  Thus  Cicero,  speaking 
of  the  captive  Britons,  "Ex  quibus  nullos  puto  te  literis  aut  musicis  eru- 
ditos  expectare."  Ad  Art.  Lib.  IV,  16. 

8  Turner's  Anglo-Saxons,  Bk.  VII,  ch.  ix ;  Nithard's  Hist.  Lib.  IV. 
From  lazzi,  comes  the  English  word  lazy,  so  often  applied  to  servants. 
See  Rees's  Cyclopedia,  "  Lazzi." 

3  Turner,  as  above;  Ancient  Laws  and  Institutes  of  England,  passim. 

4  Leg.  Hen.  I,  \  76. 

5  Laws  of  Kings  Hlothheare  and  Eadric,  §  1,  and  note  thereto.     Wihtr. 
ch.  xxiii.     The  slayer  of  a  slave,  by  the  law  of  Aethelbert,  paid  three 


CXX1V  HISTORICAL   SKETCH   OF   SLAVERY. 

subject  of  sale  and  of  gift.  Some  of  the  later  kings 
forbade  the  sale  of  a  Christian  slave  to  be  sent  beyond 
the  realm.1  He  could  not  appear  in  court  except  through 
his  lord ;  nor  was  he  allowed  his  oath,  that  privilege 
being  one  of  the  characteristics  of  a  freeman.2  The 
slaves  were  conveyed  both  by  deed  and  by  will,  and  in 
juxtaposition  with  cattle  and  other  personalty.3  Brand- 
ing was  a  common  punishment  with  them ;  and  it  would 
seem,  from  one  expression,  that  they  were  sometimes 
yoked :  "  Let  every  man  know  his  teams  of  men,  of 
horses,  and  oxen."4 

It  is  very  certain  that  the  slaves  wore  around  their 
necks  brazen  collars,  having  their  own  and  their  masters' 
names  inscribed  thereon.5 

The  freedmen  were  allowed,  by  the  laws  of  Alfred,  as 
holidays,  "  xii  days  at  Yule  (Christmas),  and  the  day  on 
which  Christ  overcame  the  Devil,  and  the  commemora- 
tion day  of  St.  Gregory,  vii  days  before  and  vii  days 
after ;  one  day  at  St.  Peter's  tide  and  St.  Paul's ;  and  in 
harvest,  the  whole  week  before  St.  Mary  mass ;  and  one 
day  at  the  celebration  of  All-Hallows,  and  the  iv  Wed- 
nesdays in  the  iv  Ember  weeks.  To  all  theow  men  be 
given  to  those  to  whom  it  may  be  most  desirable  to  give, 

shillings.  By  the  law  of  Ethelred,  the  slayer  paid  one  pound.  By  the 
same  law,  the  slayer  of  a  freeman  paid  thirty  pounds.  Laws  of  Ethelred, 
ii,  §  5.  See  also  Bacon's  Discourse,  35.  Alfred  procured  the  passage 
of  the  Jewish  law,  as  to  the  homicide  of  a  slave,  or  the  maiming  by  loss 
of  eyes  or  teeth,  by  the  master.  Laws,  \  17. 

1  Laws  of  King  Cnut  (secular),  §  3.  Laws  of  Etheldred,  viii,  \  5, 
which  adds,  "  Si  quis  hoc  presumat,  sit  praster  benedictionem  Dei,  et 
omnium  sanctorum,  et  prater  omnem  Christianitatem,  nisi  pceniteat  et 
emendet,  sicut  episcopus  suus  edocebit."  Laws  of  William  the  Con- 
queror, I  41.  2  Laws  of  King  Withraed,  \\  22,  23. 

3  Some  curious  instances  are  collected  in  Turner's  Anglo-Sax.,  Bk.  VII, 
ch.  ix.  4  Wilk.  Leg.  Sax.  p.  47. 

6  In  Ivanhoe,  ch.  i,  Sir  Walter  Scott  introduces  a  slave,  with  his  collar 
on  his  neck,  with  the  inscription — "  Gurth,  the  son  of  Beowulph,  is  the 
born  thrall  of  Cedric,  of  Eotherwood." 


SLAVERY   IN   GREAT   BRITAIN.  CXXV 

whatever  any  man  shall  give  them  in  God's  name,  or 
they,  at  any  of  their  moments,  may  deserve."1 

The  working  of  slaves  on  the  Sabbath,  however,  was 
expressly  forbidden,  and  the  penalty  therefor  was  the 
freedom  of  the  slave.  If  a  freedman  worked  on  that 
day,  without  his  lord's  command,  he  forfeited  his  free- 
dom. If  a  slave  worked  on  that  day,  without  his  lord's 
command,  "let  him  suffer  on  his  hide."2 

The  harborer  of  a  fugitive  slave  was  required  to  pay 
the  owner  the  value  of  the  slave.3  The  slaves  themselves 
were  not  allowed  admittance  into  sacred  orders,  "  ante 
legitimam  libertatem."4 

The  written  contracts  of  that  day,  which  have  been 
preserved,  enable  us  to  give  accurately  the  prices  of  slaves. 
A  half  pound  was  the  average  price.5  They  were  pur- 
chased for  exportation,  until  that  was  forbidden;  and 
Henry  states,  that  at  Bristol  a  brisk  slave-trade  was  car- 
ried on,  in  purchasing  Englishmen  and  exporting  them 
to  Ireland  for  sale.6  And  William  of  Malmsbury  states, 
that  it  seems  to  be  a  natural  custom  with  the  people  of 
Northumberland,  to  sell  their  nearest  relations.7 

It  would  seem,  from  the  fact  that  slaves  purchased 
their  freedom  sometimes,  that  the  indulgence  of  masters 
allowed  them  something  similar  to  the  Roman  peculium. 
Theft  appears  to  have  been  a  common  offence  with  them, 
and  the  master  was  made  responsible  therefor,  unless  he 
showed,  by  his  oath  and  compurgators,  that  it  was  done 
without  his  command.  In  the  event  of  their  committing 
homicide,  they  were  required  to  be  delivered  to  the 
avengers  of  blood ;  and  for  other  offences,  branding  was 

1  Laws  of  King  Alfred,  ch.  xliii.  2  Dooms  of  King  Ina,  \  3. 

8  Laws  of  King  Ina,  $  30.  4  Laws  of  Henry  I,  ch.  Ixviii. 

6  Turner  has  collected  several ;  Bk.  VII,  ch.  ix. 

6  Hist.  vol.  iv,  p.  238 ;  Barrington  on  Statutes,  274 ;  Bancroft's  United 
States,  i,  162. 

7  Lib.  I,  ch.  iii ;  consult  also  Strabo,  Lib.  IV,  p.  199  (ed.  Paris,  1620). 


CXXV1  HISTORICAL   SKETCH  OF   SLAVERY. 

a  common  punishment.1  We  have  already  mentioned 
the  punishment  for  the  homicide  of  a  slave.  The  rape 
of  a  female  slave  was  also  punished  by  a  fine.3 

Manumission  at  the  altar,  is  mentioned  as  early  as  the 
laws  of  King  Wihtraed  (about  the  year  700),  as  an  exist- 
ing and  established  custom.3  The  laws  of  William  the 
Conqueror  prescribe  other  modes  of  manumission,  evi- 
dently borrowed  from  the  continent,  viz.,  the  declaration 
of  freedom  before  the  County  Court,  the  "  ostendens  ei 
liberas  vias  et  portas,"  the  giving  to  him  of  the  arms  of 
a  freeman,  a  lance  and  a  sword.4  The  laws  of  Henry  I 
are  very  full  in  prescribing  additional  modes  of  effecting 
manumission.5 

The  records  of  ancient  wills  exhibit  a  number  of  cases 
of  emancipation  by  will.  The  causes  operating  upon 
the  testator  were  usually  gratitude  and  benevolence. 
One  instance  is  given  of  two  Irishmen  who  were  freed 
for  the  sake  of  an  abbot's  soul.6 

The  effect  of  manumission  was  simply  to  release  the 
slave  from  the  bondage  of  the  master.  It  did  not  place 
him  upon  the  footing  of  a  free  citizen.  "  Thus,"  says 
Bacon,  "  though  they  had  escaped  the  depth  of  bondage, 
yet  attained  they  not  to  the  full  pitch  of  freemen ;  for 
the  lord  might  acquit  his  own  title  of  bondage,  but  no 
man  could  be  made  free  without  the  act  of  the  whole 
body.  And  therefore  the  historian  (Tacitus)  saith,  that 
they  are  not  multum  supra  servos,  or  scarce  not  servants. 
....  Those  are,  nowadays,  amongst  the  number  and 
rank  of  such  as  are  called  copyholders,  who  have  the  pri- 
vilege of  protection  from  the  laws,  but  no  privilege  of 
vote  in  the  making  of  laws."7 

1  Laws  of  King  Ina,  ch.  Ixxiv ;  Laws  of  King  Aethelstan,  Ordinance 
3 ;  Laws  of  King  Ethelred,  ch.  ii ;  Laws  of  King  Cnut,  ch.  xxxii. 

2  Laws  of  King  Alfred,  ch.  xxv. 

8  Ibid.  ch.  viii.  4  Ibid.  ch.  xv.  5  Ibid.  ch.  Ixxviii. 

6  See  Turner,  Bk.  VII,  ch.  ix. 

7  Discourse  of  the  Laws  and  Government  of  England,  by  Nath'l  Bacon 
(1739),  p.  35  ;  see  also  Glanville,  Lib.  V,  ch.  v. 


SLAVERY   IN   GREAT   BRITAIN.  CXXvii 

The  Christian  religion,  and  other  causes,  combined 
both  to  promote  manumission  and  to  ameliorate  the 
condition  of  the  Saxon  slaves.1  King  Alfred  procured 
the  adoption  of  the  Jewish  law,  that  whosoever  bought 
a  Christian  slave,  the  time  of  his  servitude  should  be 
limited  to  six  years,  and  on  the  seventh  he  should  go 
free,  with  his  wife,  if  he  brought  her  with  him.  But  if 
the  master  had  given  him  a  wife,  she  and  her  children 
remained.  If  he  chose  to  continue  a  slave  he  might 
do  so.2  So  Edward  the  Confessor  ordained :  "  That  the 
lords  should  so  demean  themselves  towards  their  men, 
that  they  neither  incur  guilt  against  God,  nor  offence 
against  the  king :  or  which  is  all  one,  to  respect  them  aa 
God's  people  and  the  king's  subjects."3 

The  invasion  of  the  Normans  had  considerable  effect 
upon  the  Saxon  slavery.  The  followers  of  the  Conqueror 
were  accustomed  to  the  feudal  system.  In  accordance 
with  it,  they  reduced  to  a  state  of  vassalage,  indiscrimi- 
nately, both  masters  and  men.4  The  most  ruinous  op- 
pressions were  resorted  to,  to  extort  the  last  cent,  from 
which  "  neither  the  poor  man's  poverty,  nor  the  rich 
man's  abundance,  protected  them."5  The  very  existence 
of  a  common  oppressor,  and  of  a  common  hatred,  pro- 
duced a  feeling  of  kindness  and  sympathy,  lessening  the 
distance  between  the  master  and  his  villain.  When  the 
fruits  of  the  slave's  industry  were  taken  from  the  master 
by  oppressive  taxation,  and  the  slave  ceased  therefore  to 
be  valuable,  the  lord  either  manumitted  him,  or  by  dis- 
use lost  his  absolute  control.  Thus  by  degrees  villan- 

1  Edwards's  Ecclesiastical  Jurisdiction,  \  37. 

8  Wilk.  Leg.  Sax.  29;  Alfred,  in  his  will,  "In  the  name  of  the  living 
God,"  forbade  his  heirs  to  invade  the  liberty  of  those  men  whom  he  had 
set  free.  Edwards's  EC.  Jur.  \  55. 

3  Bacon's  Discourse,  as  above. 

4  Fitzherbert  gives  this  account  of  it ;  see  Bar.  on  Statutes,  307 ;  see 
Black.  Comm.  Bk.  II,  p.  92. 

6  William  of  Malmsbury,  Bk.  IV,  ch.  i.  Roger  of  Wendover's  Chro- 
nicle, A.D.  1085. 


CXXViii  HISTORICAL   SKETCH   OF   SLAVERY. 

age,  with  its  acknowledged  rights  to  the  villain,  was 
substituted  for  the  ancient  Saxon  slavery. 

Pure  or  base  villanage,  however,  was  only  a  modified 
slavery.  Their  service  was  uncertain,  and  entirely 
within  the  discretion  of  the  lord.  They  were  liable  to 
corporal  chastisement  and  imprisonment.1  They  were 
incapable  of  acquiring  property,  except  by  the  lord's 
permission ;  the  rule  of  law  being  "  quicquid  acquiritur 
servo,  acquiritur  domino."  They  could  not  purchase 
,  their  own  liberty,  because,  says  Glanville,  "  omnia  catalla 
nativi  intelliguntur  esse  in  potestate  domini  sui."3  They 
could  be  sold  and  transferred,  if  vileins  in  gross,  ad 
libitum ;  if  vileins  regardant,  with  the  land.  They  de- 
scended as  chattels  real  to  the  heir,  and  their  condition 
was  transmitted  to  their  posterity ;  the  status  of  the 
father  determining  their  condition,  contrary  to  the  rule 
of  the  civil  law.3  They  could  not  be  heard  as  witnesses 
or  suitors  against  their  lord ;  nor  were  they  allowed  their 
oath  in  any  case,  the  privilege  of  being  sworn  being  the 
privilege  of  a  freeman.4  If  the  villain  ran  away,  or  was 
purloined  from  the  lord,  he  might  be  retaken  or  re- 

1  The  Stat.  of  1  Eich.  II,  recites,  that  the  villeyns  had  assembled 
riotously,  and  endeavored  to  withdraw  their  services  from  their  lords ; 
not  only  those  by  which  they  held  their  lands,  but  likewise  the  services  of 
their  body ;  and  provides  for  their  imprisonment  at  the  will  of  the  lord, 
without  bail  or  mainprise.    Harrington  on  Stat.  299.     This  oppression 
was  the  occasion  of  the  insurrection  under  Wat  Tyler  and  Jack  Straw. 
Ib.  300. 

2  Lib.  V,  ch.  5.     Bracton  describes  a  villain  as  one,  "  ubi  scire  non 
poterit  vespere  quale  servitium  fieri  debet  mane."     Lib.  IV,  fol.  208. 

8  Glanville,  Lib.  V,  ch.  vi ;  Bracton,  fol.  4 ;  Fleta,  Lib.  I,  ch.  iii ;  and 
The  Mirror,  ch.  ii,  sect.  28 ;  all  declare  that  the  villanage  of  either  parent 
makes  the  issue  bond. 

4  Black.  Comm.  Bk.  II,  p.  93  j  Glanville,  Bk.  V,  ch.  v.  Some  of  the 
rights  exercised  by  the  lord  are  hardly  to  be  credited ;  such  as  the  "jus 
laxandse  coxae  sponsarum  vassallorum."  The  same  author  informs  us, 
"In  dominum  peccat  vassallus,  si  dominum  cucurbitaverit,  sive  ejus 
uxore  concubiverit  vel  etiam  conatus  fuerit,  turpiter  contrectando,  vel 
osculando."  Struvii  Jur.  Feud.  p.  541,  cited  Bar.  on  Stat.  306,  307. 


SLAVERY   IN    GREAT    BRITAIN.  CXX1X 

covered  by  action,  "  like  beasts  or  other  chattels."1  As 
to  persons  other  than  the  lord,  the  villain  had  some 
recognized  rights.  He  could  sue  if  his  lord  did  not  in- 
terfere. He  could  be  executor.  He  could  purchase  and 
sell,  if  done  before  his  lord  took  possession." 

The  lord  could  not  kill  or  maim  his  villain,  and  an 
appeal  of  murder  lay  at  the  instance  of  the  relatives  of 
a  murdered  serf.3 

Base  villanage  gradually  gave  place  to  privileged  vil- 
lanage,  by  which  the  services  due  the  lord  were  made 
fixed  and  determinate,  and  generally  payable  in  money. 
The  latter  have  still  their  relics  in  Britain,  in  the  copy- 
hold tenures.4  The  last  instance  of  a  claim  of  base  vil- 
lanage in  the  courts  of  justice,  is  said  to  be  found  in  the 
fifteenth  year  of  James  I.5  Edward  IH,  when  in  need 
of  funds,  gave  to  a  manumitted  villain,  John  Simondson, 
a  general  power  to  go  through  the  royal  manors,  and 
grant  manumission  to  all  the  vassals  thereon  for  a  cer- 
tain composition  in  money.  This  example  of  the  sove- 
reign was  followed  by  many  other  lords  in  similar  need, 
and  to  this,  among  other  causes,  may  be  attributed  the 
extinction  of  villanage.6  In  1574,  we  find  a  commission 
issued  by  Queen  Elizabeth,  for  inquiry  into  the  condition 
of  "  all  her  bondmen  and  bondwomen  in  the  counties  of 
Cornwall,  &c.,  such  as  were,  by  blood,  in  a  slavish  condi- 
tion, and  to  compound  with  them  for  their  manumission 
and  freedom."7  The  benevolence  and  negligence  of 
lords,  and  the  unfruitfulness  of  villain  services  (especially 

1  Black.  Comm.  Bk.  II,  p.  93. 

2  Co.  Lit.  Bk.  II,  ch.  xiii.  3  Ibid. 

4  So  says  Coke  and  Blackstone,  Comm.  Bk.  II,  96.     But  Lord  Lough- 
borough  questions  the  correctness  of  this  opinion  as  to  the  origin  of  copy- 
holds. Dougl.  698. 

5  See  Mr.  Hargraves's  argument,  and  Lord  Mansfield's  decision,  in 
Somersett  case,  20  HowelPs  State  Trials. 

6  Barr.  on  Statutes,  304,  305. 

7  Rymer,  quoted  in  Barr.  on  Stat.  308. 


CXXX  HISTORICAL   SKETCH   OF   SLAVERY. 

when  confined  to  the  land),  may  be  added  as  principal 
causes  of  the  gradual  extinction  of  villanage.  It  is  true, 
however,  in  Britain  as  on  the  Continent,  that  the  reli- 
gious houses  were  the  last  to  grant  freedom  to  their 
villains.1 

About  the  middle  of  the  fourteenth  century  we  find 
the  first  of  a  number  of  statutes  passed  by  Parliament, 
the  object  of  which  was  to  compel  laborers  and  servants 
to  work  at  reasonable  wages,  and  also  to  regulate  their 
diet,  their  apparel,  and  their  games.3  Other  acts  gave  to 
the  justices  of  the  peace  the  power  to  rate  wages,  and 
fix  prices  of  work.3  When  the  employers  ceased  to  be 
dependent  on  laborers,  and  the  provision  as  to  justices 
rating  wages,  would  work  beneficially  to  the  laborer, 
Parliament  repealed  the  act ;  and  when,  in  1824,  the 
Arbitration  Act  was  passed,  a  provision  was  inserted, 
prohibiting  the  justices  from  establishing  wages,  without 
the  consent  of  both  master  and  workmen.4 

In  Scotland,  the  colliers,  coalbearers,  and  salters  con- 
tinued in  a  state  of  actual  personal  bondage  to  a  much 
later  period  than  we  find  villains  in  gross  in  England. 
In  fact,  freedom  was  not  acquired  by  them  till  the  pas- 
sage of  the  Act  of  39  Geo.  3,  c.  56.  Nearly  a  quarter  of 

1  Black.  Comra.  Bk.  II,  95,  96 ;  Barr.  on  Stat.  309 ;  Sir  Thorn.  Smith, 
Comm.  Bk.  Ill,  ch.  x. 

2  The  curious  will  be  amused  with  some  of  these  provisions.     "  No 
servant  nor  common  laborer  shall  wear,  nor  suffer  their  wives  to  wear 
in  their  clothing,  any  cloth,  whereof  the  broad  yard  shall  pass  the  price 
of  two  shillings.     Nor  shall  they  suffer  their  wives  to  wear  any  veile  or 
kercheffe,  whose  price  exceedeth  twenty  pence ;  nor  any  hosen,  whereof 
the  paire  shall  pass  eighteen  pence."     No  valet,  or  under  that  degree, 
"  shall  use,  nor  wear  in  array  for  his  body,  any  bolsters,  nor  stuffs  of  cotton, 
wool,  or  cadas,  nor  other  stuffing  in  his  parer  point,"  &c.  &c.     3  Edw. 
IV,  c.  v  ;  22  Edw.  IV,  c.  i.     Sampson  on  Codes   and  Common  Law, 
pp.  131,  132,  133  ;  Smith  on  Master  and  Servant,  Introd.  p.  29,  &c. 

3  5  Eliz.  c.  iv  ;  29  Geo.  2,  c.  xxxiii ;  20  Geo.  2,  c.  xix. 

4  Smith  on  Master  and  Servant,  Introd.  p.  30. 


SLAVERY   IX    GREAT    BRITAIN.  CXXX1 

a  century  before  that  time  an  act  was  passed  for  the 
same  purpose,  but  was  disregarded  by  those  for  whose 
benefit  it  was  intended.1  In  fact,  they  esteemed  the  in- 
terest taken  in  their  freedom,  to  be  a  mere  device  on 
the  part  of  the  proprietors  to  get  rid  of  what  they  called 
head  or  harigald  money,  payable  to  them  when  a  female, 
by  bearing  a  child,  added  to  the  live  stock  of  their  mas- 
ter's property.3 

The  villains  in  Ireland  were  termed  BetagJiii  or  Tcea- 
gua.3  The  Irish  do  not  seem  ever  to  have  been  fond  of 
slaveholding.4  Their  early  slaves  were  Englishmen,  all 
of  whom,  in  1172,  they  emancipated  by  a  decree  of  a 
national  synod/  Their  subsequent  history  has  been  a 
succession  of  efforts  to  rid  themselves  of  political  bond- 
age. 

The  present  condition  of  the  laboring  classes  in  Great 
Britain  differs  from  personal  bondage  chiefly  in  the  name. 
Necessity  and  hunger  are  more  relentless  masters  than 
the  old  Saxon  lords.  The  power  of  life  and  death, 
and  the  use  of  corporal  chastisement  are  the  mere  at- 
tendants of  slavery  ;  neither  are  necessary  to  constitute 
perfect  bondage.6  When  the  time  and  labor  of  one 
person  are  by  any  means  not  purely  voluntary,  the  pro- 
perty of  an  other,  the  former  is  a  slave  and  the  latter  is 
a  master.  And  it  makes  no  change  in  their  condition, 
whether  the  food  and  clothing  of  the  laborer  be  fur- 
nished him  from  the  obligation  to  support  and  clothe 

1  Hargraves's  argument,  Somersett  case,  20  Howell's  State  Trials ; 
Smith  on  Master  and  Servant,  Int.  xxviii,  note  2. 

2  See  note  to  Red  Gauntlet,  ch.  xxi,  p.  265  (Abbotsford  edition). 

3  Hence  the  Irish  term  of  reproach,  Teague.     Barr.  on  Stat.  303,  306. 

4  Fancy  might  suggest  as  the  reason  for  this,  the  fact  that  St.  Patrick 
was  himself  sold,  by  his  father,  into  slavery,  to  a  Scotchman,  whom  he 
served  as  a  swineherd ;  see  Roger  of  Wendover's  Chronicle,  A.D.  491. 

5  Copley,  on  Slavery,  82. 

6  Yet  the  most  cruel  corporal  punishment  is  used  in  the  English  mines. 
See  Cobden's  White  Slaves  of  England,  33,  34. 


CXXX11  HISTORICAL    SKETCH    OF    SLAVERY. 

one's  property,  or  from  the  scanty  return  of  nominal 
wages. 

As  to  food,  clothing,  residences,  and  the  amount  and 
character  of  the  labor  required,  the  working  classes  of 
Britain  compare  unfavorably  with  many  slaveholding 
countries.1  The  earnings  of  the  agricultural  peasant 
will  barely  furnish  a  support,  when  he  is  in  health  and 
employment.  When  out  of  employment  or  diseased, 
he  becomes  necessarily  a  pauper.  The  parliamentary 
reports  give  a  view  of  wretchedness,  destitution,  igno- 
rance and  cruelty,  in  connection  with  the  men,  women, 
and  children,  engaged  in  the  English  mines,  which  from 
any  less  reliable  source  would  be  incredible. 

From  the  same  reliable  evidence  we  are  informed  of 
degradation,  poverty,  and  cruel  oppression  under  which 
the  poor  laborers,  of  every  age  and  sex,  groan  and  exist 
in  the  factories  and  workshops  of  the  United  Kingdom. 
The  use  of  the  lash  is  no  uncommon  resort  of  the  bosses, 
and  the  fear  of  starvation  bars  up  the  door  of  justice. 

The  menial  and  liveried  servants  of  Britain  share  a 
fate  not  much  superior.  Actual,  corporal  cruelty  is  not 
so  frequent,  and  detection  and  punishment  more  cer- 
tain ;  yet,  the  abject  submission  required,  and  the  con- 
temptuous treatment  received,  break  the  spirit  of  the 
slave,  and  give  food  to  the  insolence  of  the  master. 

A  prominent  evil  to  which  the  poor  of  Britain  are  sub- 
jected, is  their  miserable  homes.  Crowded  into  a  single 

1  Says  M.  De  Beaumont,  "  J'ai  vu  1'Indien  dans  ses  forets ;  j'ai  vu  le 
noir  dans  1'esclavage,  mais  je  n'ai  vu  auciyie  misere  qui  puisse  elre  com- 
par6e  a  celle  de  1'Irlandais."  Quoted  by  M.  Levavasseur,  who  adds, 
"  Nous  avons  vu  a  Dublin  meme  des  hommes  qu'on  eut  pris  pour  des 
spectres,  et  a  leur  approche  nous  detournions  involontairementles  regards, 
car  ils  avaient  Faspect  du  cadavre."  Esclavage  de  la  race  noire,  pp. 
40,  41.  Carlyle  compares  the  condition  of  the  Saxon  slave  with  the 
modern  peasant;  and,  af'  showing  its  preferableness,  concludes, 
"  Liberty,  I  am  told,  is  a  div)  .  thing.  Liberty,  when  it  becomes  the 
liberty  to  die  by  starvation,  is  not  so  divine."  Past  and  Present,  Bk.  Ill, 
ch.  xiii. 


SLAVERY   IN   GREAT   BRITAIN.  CXXX111 

room,  of  all  sexes  and  ages,  filth,  disease,  vice,  and 
crime,  are  the  inevitable  consequences.  To  this,  add  a 
degree  of  ignorance  appalling,  in  so  old  and  civilized  a 
nation;  and  the  result  is  not  astonishing  that  so  many  of 
the  children  should  be  thieves,  and  the  women  prosti- 
tutes, and  the  men  paupers.1 

The  Parliament  of  Great  Britain,  at  the  instance  of 
great  and  good  men,  have  not  been  backward  in  striving, 
by  legislation,  to  stay  the  oppressor's  hand  ;  to  give  air 
and  light,  and  food  and  clothing  to  the  caged  children  ; 
to  encourage  all  improvement  in  the  lodging-houses  for 
the  poor;  in  fact,  to  remedy  every  evil  within  the  reach 
of  their  legislation,  without  giving  too  violent  a  shock 
to  the  great  agricultural,  mechanical,  and  commercial  in- 
terests. Nor  has  the  philanthropy  of  England  been 
exclusively  extended  abroad.  Private  and  associated 
charity  have  done  much  to  relieve  suffering  humanity. 
Yet  after  all  that  charity  enlightened  by  religion,  and 
legislation  guided  by  humanity,  can  do,  the  picture  we 
have  drawn  is  not  overcolored,  when  applied  to  the  ac- 
tual condition  of  many  of  their  poor.  How  these  evils 
shall  be  remedied  is  a  problem  yet  unsolved,  and  to-day 
taxing  the  thoughts  and  burdening  the  hearts  of  the  wise 
and  good  of  the  land. 

1  In  addition  to  the  Reports  to  Parliament,  I  have  relied  upon  the  fol- 
lowing authorities:  Mayhew's  London  Labor  and  London  Poor;  Cob- 
den's  White  Slaves  of  England ;  Dickens's  Household  W  rds,  ix,  398  ; 
Silliman's  Second  Visit  to  Europe,  i,  31 ;  Dr.  Durbin's  Observations 
in  Europe,  ii,  120,  170,  171,  ch.  xii,  at  large;  The  Glory  and  Shame 
of  England;  Prime's  Travels  in  Europe  and  the  East,  i,  149,  173,  182; 
Chartism,  by  Thomas  Carlyle. 


CHAPTER  IX. 

NEGRO  SLAVERY  AND  THE  SLAVE-TRADE. 

WE  cannot  go  back  to  the  origin  of  negro  slavery.1 
We  have  seen  that  the  earliest  authentic  histories 
and  monuments  exhibit  the  negro  in  a  state  of  bond- 
age.3 From  that  time  to  the  present  he  has  in  greater 
or  less  numbers  ever  been  a  slave.  Whether  this  condi- 
tion is  the  curse  on  Canaan,  the  son  of  Ham,  as  many 
religiously  believe,  and  plausibly  argue,  it  is  not  our  pro- 
vince to  decide.  The  investigation  would  lead  us  into 
tempting  but  too  extensive  fields  for  our  purpose.  The 
fact  exists  undeniably,  be  the  cause  what  it  may.  Xor  is 
it  our  purpose  -to  describe  the  oppressive  slavery  to 
which  the  negro  is  subjected  in  his  own  land  and  at  the 
hand  of  his  fellows.  Both  master  and  slave  being  bar- 
barians, we  could  expect  to  find  only  the  most  savage 
and  cruel  forms  of  slavery.  The  ingenuity  of  an  en- 
lightened intellect  could  scarcely,  by  effort,  devise  the 
numerous  and  skilful  and  horrid  cruelties  of  these  bar- 
barian masters.3 

1  Herodotus,  the  oldest  Greek  historian,  commemorates  the  traffic  in 
slaves,  Lib.  IV,  c.  clxxxi. 

2  "  We  have  effigies  of  negroes,  drawn  by  six  different  nations  of  anti- 
quity :  Egyptians,  Assyrians,  Persians,  Greeks,  Etruscans,  and  Romans, 
from  about  the  eighteenth  century  before  Christ,  to  the  first  centuries  of 
our  own  era."     See  Indigenous  Races  of  Man,  190. 

3  To  those  disposed  to  pursue  this  inquiry,  the  following  works  will 
give  most  ample  information:  Travels  of  Park,  Clapperton,  Saunders, 
and  others,  passim ;  Capt.  Canot,  or,  Twenty  Years  of  an  African  Slaver; 
Bayard  Taylor's  Journey  into  Central  Africa;  Buxton's  Slave-Trade  and 
its  Remedy,  Pt.  I,  ch.  iv;  Edwards:s  West  Indies,  vol.  ii,  ch.  xvii. 


NEGRO  SLAVERY  AND  THE  SLAVE-TRADE.    CXXXV 

In  the  ecclesiastical  annals  of  Ortiz  de  Zuniga  it  is 
mentioned,  that  a  traffic  in  negro  slaves  to  the  city  of 
Seville  existed  as  early  as  A.D.  1399.  There  certainly 
were  large  numbers  in  Seville  at  the  time  he  wrote 
(1474) ;  but  the  former  statement  seems  doubtful.  In 
1442,  some  Moors  who  had  been  captured  by  the  Portu- 
guese, proposed  to  purchase  their  liberty  by  a  ransom  of 
negro  slaves.  Prince  Henry  of  Portugal  instructed  Gon- 
salvez  to  accept  the  ransom,  for  whatever  negroes  he 
should  get "  he  would  gain  souls,  because  they  might  be 
converted  to  the  faith,  which  could  not  be  managed 
with  the  Moors."1  Ten  negro  slaves  were  obtained  ; 
and  around  this  nucleus,  thus  commenced,  either  from 
true  or  pretended  religious  zeal,  was  gathered  that  im- 
mense trade,  for  which  Spain,  Portugal,  and  England,  for 
centuries,  contended,  and  which  has  since  been  branded 
as  piracy  by  almost  every  civilized  nation  of  the  world. 

The  horrors  of  the  trade  seem  to  have  commenced 
with  its  beginning,  and  there  were  generous  hearts  to 
weep  over  them  then,  as  there  were  in  after  years.  The 
good  chronicler,  Azurara,  thus  opens  his  description  of 
a  division  of  captive  slaves,  in  the  year  1444  :  "  0  thou 
heavenly  Father !  I  implore  thee  that  my  tears  may  not 
condemn  my  conscience,  for  not  its  law  but  our  common 
humanity  constrains  my  humanity  to  lament  piteously 
the  sufferings  of  these  people."  The  good  man,  after 
describing  the  scene,  thus  concludes,  "  And  I,  who  have 
made  this  history,  have  seen  in  the  town  of  Lagos,  young 
men  and  young  women,  the  sons  and  grandsons  of  those 
very  captives  born  in  this  land,  as  good  and  as  true 
Christians  as  if  they  had  lineally  descended  since  the 
commencement  of  the  law  of  Christ,  from  those  who 
were  first  baptized."2 

1  The  Conquerors  of  the  New  "World  and  their  Bondsmen,  i,  28,  29  ; 
Edwards's  West  Indies,  ii,  c.  XT.      La  trajte  et  son  origine,  par  M. 
Schcelcher. 

2  The  Conquerors,  &c.  i,  33,  36. 


CXXXVi  HISTORICAL   SKETCH    OF   SLAVERY. 

The  success  of  the  first  expeditions  encouraged  the 
Portuguese,  and  they  sent  out,  in  successive  years, 
numerous  expeditions,  each  with  instructions  "to  con- 
vert the  natives  to  the  faith."  This,  and  discovery,  were 
the  paramount  objects  with  the  early  Portuguese  expe- 
ditions. The  slaves  obtained  by  them,  were  in  exchange 
for  merchandise  with  slave-dealers,  who  brought  them 
from  the  interior ;  and  until  the  discovery  and  coloniza- 
tion of  America,  there  was  no  market  for  the  slaves 
sufficient  to  excite  the  covetousness  and  other  evil  pas- 
sions of  men.1 

The  discovery  of  America  in  1492  was  an  event,  the 
effect  of  which  upon  the  civilized  world  can  never  be 
calculated,  and  perhaps  is  seldom  fully  apprehended. 
Upon  the  subject  we  are  now  considering,  it  was  both 
the  forcing-bed,  and  yet  the  broad  field.  It  stimulated 
enterprise  and  discovery.  It  furnished  a  receptacle  for 
the  innumerable  slaves  which  the  African  petty  kings 
offered  in  exchange  for  the  manufacture  and  gaudy  trin- 
kets of  Europe.  The  demand  necessarily  increased  the 
supply,  and  of  course  gave  stimulus  to  the  petty  wars 
and  marauding  expeditions  by. which  that  supply  was 
effected;  and  thus  we  might  travel  from  cause  to  effect 
almost  ad  infinitum. 

The  same  religious  fervor  which  governed  and  con- 
trolled the  action  of  the  Portuguese,  in  their  early  con- 
duct towards  the  negro  slaves,  seems  to  have  been  the 
ruling  passion  with  the  Spaniards  in  their  discoveries  in 
the  New  World.  Hence,  we  find  the  pious  Herrera 
chronicling  the  death  of  the  first  baptized  Indian,  as  the 
pioneer  of  that  nation  in  his  entry  into  heaven.2  The 

1  Ibid.  37  to  75.   Expedition  of  Ca  da  Mosta,  Astley's  Voyages,  i,  574. 
He  places  the  exportation  at  seven  to  eight  hundred  per  annum.     But 
this  was  evidently  more  than  the  truth. 

2  Dec.  I,  Lib.  II,  cap.  5.     The  proclamation  made  by  the  voyagers  to 
the  Indians,  is  a  curious  picture  of  the  notions  of  those  times.    After 
telling  them  of  the  creation  of  the  world,  it  traced  title   thereto  to 


NEGRO  SLAVERY  AND  THE  SLAVE-TRADE.   CXXXV11 

same  spirit  is  breathed  in  all  the  early  instructions  of  the 
government  to  Columbus.  The  prime  object  is  to  bring 
all  the  dwellers  in  the  Indies  to  a  knowledge  of  the 
sacred  Catholic  faith,  and  to  that  end  he  is  charged  to 
deal  lovingly  with  the  Indians.1  The  Admiral,  fully  ap- 
preciating his  instructions,  in  1494,  sent  home  some 
Indians,  "  as  slaves,  to  be  taught  Castilian,  and  to  serve 
afterwards  as  interpreters,  so  that  the  work  of  conversion 
may  go  on."a  It  was  not  a  difficult  task  for  the  Spaniards 
to  convince  themselves,  that  in  enslaving  the  Indians 
they  were  doing  God's  service ;  and  hence,  we  find  their 
captives  first,  and  afterwards  the  unoffending  neighbor- 
ing natives,3  by  thousands,  reduced  to  the  most  abject 
slavery.  The  fields  and  the  mines  of  their  conquerors 
were  soon  filled  to  overflowing  with  these  easily  acquired 
laborers  ;  and  so  different  a  life  was  this  from  the  indo- 
lent habits  of  a  people,  whose  generous  land  had  ever 
supplied  their  scanty  wants  without  toil  or  care,  that  it 
is  not  strange  that  we  should  hear  piteous  tales  of  their 
Bufferings  under  their  new  masters.  It  would  be  aside 
from  our  subject  to  give  a  minute  detailed  account  of 

St.  Peter,  and  thence  to  the  reigning  Pope.  It  then  recited  the  grant  of 
the  Indies,  by  the  Pope,  to  the  sovereigns  of  Castile ;  and  after  urging 
the  Indians  to  acknowledge  their  fealty  to  these  sovereigns,  it  threatened 
them  with  war  and  slavery  if  they  refused.  The  historian  adds  :  "  We  may 
fancy  what  ideas  the  reading  of  the  document  conveyed  to  a  number  of 
Indians  sitting  in  a  circle,  squatting  on  their  hams."  The  Conquerors,  &c., 
vol.  ii,  117. 

The  question  of  the  legality  of  the  Indian  enslavement  was  frequently 
discussed  in  Spain,  and  submitted  by  the  King  to  both  learned  lawyers 
and  divines.  Their  various  opinions,  and  the  reasons  given  for  them, 
are  curious  and  amusing.  See  Conquerors  of  the  New  World  and  their 
Bondsmen,  vol.  i,  passim. 

1  The  Conquerors,  &c.,  i,  pp.  118,  119.  » Ibid.  121. 

3  Isabella  seems,  at  first,  to  have  been  much  horrified  at  the  enslave- 
ment of  Indians  not  captives  in  war,  and  has  been  much  applauded  for 
proclamations  she  caused  to  be  made,  ordering.all  such  to  be  restored  to 
freedom.  Herrera,  Dec.  I,  Lib.  IV,  cap.  vii ;  quoted  in  The  Conquerors, 
&c.,  i,  155. 


CXXXvili  HISTORICAL   SKETCH   OF    SLAVERY. 

these  sufferings.  Suffice  it  to  say,  that  they  broke  the 
spirit  of  a  people  so  long  accustomed  to  freedom,  and 
constitutionally  so  little  qualified  for  slavery,  and  that 
they  sickened  and  died  under  the  restraint.  The  race 
dwindled  away,  both  in  physical  capacity  and  numbers, 
and  the  fact  was  soon  demonstrated,  that  though  morally 
heathen,  and  intellectually  the  inferior  race,  still  the 
Indian  was  not  by  nature  qualified  and  capacitated  for 
bondage.  It  was  this  fact,  and  the  observation  of  these 
sufferings,  which  induced  the  good  Las  Casas,  the  early 
friend  of  the  red  man,  to  remonstrate  with  his  govern- 
ment against  this  system,  and  to  urge  the  importation  of 
negroes,  accustomed  in  their  native  land  to  a  state  of 
bondage,  and  whose  physical  and  intellectual  develop- 
ment improved  while  in  slavery.  The  wisdom  and  the 
piety  of  the  good  man  have  both  been  severely  censured 
for  this  advice,  by  which,  it  is  said,  he  enfranchised  one 
race  by  enslaving  another.  But  the  subsequent  history 
of  the  races,  and  the  observation  of  the  world,  will 
eventually  vindicate  both  his  far-seeing  wisdom  and  his 
broad  benevolence.1 

The  first  mention  made  of  negroes  carried  to  the  £Tew 
"World,  we  find  in  the  instructions  given  by  the  Spanish 
court  to  Ovando,  in  the  year  1501,  by  which  negro  slaves, 
"  born  in  the  power  of  Christians,"  were  allowed  to  be 
sent  to  the  Indies.3  In  1510  and  1511,  we  find  frequent 
mention  of  negro  slaves  sent  by  the  mother  country,  al- 
though the  numbers  did  not  increase  very  fast  up  to  the 

1  Las  Casas,  though  much  censured,  was  not  alone  in  his  recommen- 
dation of  this  policy.     Herrera  says,  "This  project  was  rather  that  of  the 
Cardinal  Tortosa."     Dec.  II,  Liv.  II,  ch.  xx.     This  cardinal  afterwards 
occupied  the  Holy  See,  as  Adrian  V.     In  1516,  a  proposition  similar  to 
that  of  Las  Casas,  was  made  by  the  Three  Fathers  of  the  Order  of  St. 
Jerome.     So  also  the  orders  of  Ferdinand,  dated  in  1512  and  1513,  refer 
to   representations   of  like   import,   from  the   Franciscan   friars.      La 
traite  et  son  origine ;  Colonies  Etrangeres,  par  M.  Schrelcher,  i,  3T3. 

2  The  Conquerors,  &c.,  i,  170 ;  Irving's  Columbus,  Bk.  XIV,  ch.  iii. 


NEGRO    SLAVERY   AXD   THE    SLAVE-TRADE.        CXXX1X 

death  of  Ferdinand,  in  1516.  The  last  notice  we  have 
of  this  trade  during  his  reign,  was  a  reply  of  his  to  a 
request  from  the  Bishop  of  Conception,  in  Hispaniola, 
for  more  negro  slaves,  in  which  he  says,  that  there  are 
already  many  negroes,  and  it  may  bring  inconvenience 
if  more  male  negroes  should  be  introduced  into  the 
island.1  It  would  seem  from  this,  that  up  to  that  time 
none  but  grown  males  had  been  sent  over ;  and  it  is  true, 
that  up  to  his  death  no  private  enterprise  was  engaged 
in  this  traffic.  All  the  negroes  were  sent  by  order  of  the 
government.3  To  his  successor,  Charles  Y,  it  was  left  to 
grant  the  first  license  to  De  Bresa,  one  of  his  Flemish 
favorites,  for  the  importation  of  negroes  into  the  West 
Indies.  This  license  or  patent  was  sold  to  some  Genoese 
merchants  for  25,000  ducats,  and  here  may  be  properly 
dated  the  commencement  of  the  slave-trade  proper.3 

By  this  time,  the  Indian  population  of  Hispaniola  had 
decreased  from  3,000,000,  the  number  at  the  date  of  its 
discovery,  according  to  Las  Casas,  and  1,130,000,  accord- 
ing to  Tuazo,  to  about  ten  to  twelve  thousand.  Such 
mortality  is  almost  incredible.4  The  result,  however, 
was  a  still  more  urgent  cry  for  negro  laborers.  From 
the  governors,  the  priests,  and  the  people,  one  united 

1  The  Conquerors,  &c.,  vol.  ii,  214,  215. 

2  Bancroft  states  the  opposite,  and  says,  "Herrera  is  explicit."     I  have 
not  access  to  this  book.     Irving,  who  wrote  from  the  same  sources,  viz., 
the  MS.  of  Las  Casas,  from  which  Herrera  compiled  this  portion  of  his 
work,  gives  a  synopsis  of  the  ordinances  of  Ferdinand,  which  agree  with 
the  text ;  see  Irving's  Columbus,  Appendix,  No.  28 ;  Bancroft's  United 
States,  i,  170. 

3  Ibid.  230, 231 ;  Robertson's  America,  i,  163  (Harper's  Ed.) ;  Irving's 
Columbus,  as  above. 

4  Ibid,  ii,  206,  207.     We  are  told  that  whole  villages  of  Indians  com- 
mitted suicide,  to  escape  this  bondage.     Some  villages  invited  others  to 
join  them  in  the  dreadful  work  (198,  199).     The  free  Indians  had  no 
better  fate.     Wishing  to  starve  out  the  Spaniards,  they  agreed  to  plant 
no  crops  for  a  year.     The  result  was,  numbers  of  them  died  of  starva- 
tion (vol.  i,  137, 138).     Prescott's  Ferdinand  and  Isabella,  Pt.  II,  c.  xxvi, 
and  the  authorities  referred  to  by  him. 


CXI  HISTORICAL   SKETCH   OF   SLAVERY. 

voice  demanded  negro  slaves.  The  Genoese  merchants 
who  had  purchased  the  patent,  sent  over  cargoes  of 
slaves,  but  the  prices  were  so  high  that  the  people  re- 
fused to  purchase.  Las  Casas  and  the  Jeronimite  priests, 
whose  business  it  was  to  protect  the  Indians  remaining 
from  oppression,  joined  in  suggesting  to  the  King  to  pay 
back  to  the  Genoese  merchants  their  25,000  ducats,  and 
allow  the  free  importation  of  negroes  by  the  Spaniards, 
paying  De  Bresa  the  custom  duties.1  So  great  was  the 
demand  for  labor  at  this  time,  that  the  colonists  fitted 
out  vessels  to  cruise  on  the  coast  of  the  mainland,  and 
by  traffic  and  by  force  made  slaves  of  the  Indians,  whom 
they  took  back  to  Hispaniola.3 

The  superiority  of  negroes  as  slaves  over  Indians  was 
early  demonstrated  by  the  Spaniards.  Vasco  Nunez, 
wishing  to  explore  the  sea  beyond  the  Isthmus,  cut  his 
wood  and  prepared  his  timbers  for  four  brigantines  on 
the  Atlantic  side,  and  thence  carried  them  across  the 
Isthmus  until  he  reached  the  waters  flowing  into  the 
Pacific.  In  this  work  he  employed  numerous  Indians, 
thirty  negroes,  and  a  few  Spaniards.  Five  hundred 
Indians  perished  in  executing  this  terrible  labor.  Not  a 
single  negro  died.3  "  The  Africans,"  says  Herrera,  "  pros- 
pered so  much  in  the  island  of  Hispaniola,  that  it  was 
the  opinion,  unless  a  negro  should  happen  to  be  hanged, 
he  would  never  die  ;  for,  as  yet,  none  had  been  known 
to  perish  from  infirmity.  Like  oranges,  they  found  their 
proper  soil  in  Hispaniola,  and  it  seemed  even  more  na- 

1  Ibid,  ii,  268,  270,  271,  273.  This  was  very  different  from  the  remon- 
strance of  Ovando,  in  1503,  at  the  number  of  negroes  in  the  colony. 
Irving's  Columbus,  Appendix,  No.  28,  p.  418. 

8  Robertson's  America,  i,  167,  168.  It  appears  that  there  was  slavery 
among  the  Indians  on  the  Continent,  along  the  present  coast  of  Mexico 
and  Central  America  ;  as  we  find  slaves  among  the  subjects  of  their  sacri- 
fices, and  also  presents  of  slaves  to  the  early  explorers.  The  Conquerors, 
&c.,  ii,  8,  73. 

3  The  Conquerors,  &c.,  vol.  i,  150,  151. 


NEGRO  SLAVERY  AND  THE  SLAVE-TRADE.     Cxll 

tural  to  them  than  their  native  Guinea."1  An  ordinance 
of  the  Spanish  Court,  in  1511,  gives  the  secret  of  the 
slave-trade,  wherein  it  was  decreed  that  "  a  large  number 
of  negroes  should  be  transported  to  the  colonies,  because 
one  negro  does  more  work  than  four  Indians."2 

Cardinal  Ximenes  has  received  undeserved  praise  for 
his  opposition  to  the  patents  granted  by  Charles  Y,  for 
the  furnishing  of  negro  slaves  to  the  Indies,  the  praise 
being  based  upon  his  supposed  benevolence  and  spirit 
of  justice.3  The  reasons  assigned  by  the  historians  for 
this  opposition  vary,  but  the  more  plausible  one  is,  that 
his  sagacity  foresaw  that  the  numbers  of  negroes  would 
be  greatly  multiplied  in  a  climate  so  favorable  to  their 
race,  and  that  revolt  would  be  the  inevitable  result.4 
This  result  was  hastened  beyond  the  expectation  of  the 
statesman,  for  as  early  as  1522  there  was  a  revolt  among 
the  negroes  of  Hispaniola.  The  number  engaged  in  it 
was  small,  and  their  punishment  exemplary,  and  their 
example  was  not  followed  for  many  years."  This  revolt 
was  doubtless  the  effect  of  cruel  treatment;  yet,  we 
must  admit  that  while  the  Spaniards  were  brutal  in  their 
conduct,  both  to  the  Indians  and  the  negroes,  yet  their 
government,  as  exhibited  through  their  ordinances  and 
instructions,  was  ever  anxious  to  mitigate  these  evils, 
having  the  care  of  souls  and  the  conversion  of  the  hea- 
then as  the  paramount  objects,  and  the  discovery  of  gold 
as  a  secondary  but  eagerly  desired  consummation.  The 
latter  object  was  obtained,  but  in  the  words  of  an  elo- 

1  Hist.  Ind.  Lib.  II,  Dec.  Ill,  c.  iv. 

8  La  traite  et  son  origine,  par  M.  Schcelcher;  found  in  Colonies  Etran- 
geres,  i,  369. 

3  Robertson's  America,  i,  163;  Copley,  on  Slavery,  3. 

4  Irving's  Columbus,  Appendix,  No.  28,  p.  418;  The  Conquerors,  &c., 
ii,  231,  et  not;  Colonies  Etrangeres,  par  M.  Schoelcher,  i,  p.  367;  His- 
toire  du  Cardinal  Ximenes.  par  Marsollier,  Liv.  VI. 

6  Irving's  Columbus,  App.  No.  2,  p.  303  ;  Herrera,  Dec.  Ill,  Liv.  IV, 
ch.  ix.  He  mentions  a  previous  attempt  in  1518.  Dec.  II,  Liv.  Ill, 
cb.  xiv. 


CXIii  HISTORICAL   SKETCH   OF   SLAVERY. 

quent  historian,  "the  nation,  like  the  Phrygian  monarch 
who  turned  all  he  touched  to  gold,  cursed  by  the  very 
consummation  of  its  wishes,  was  poor  in  the  midst  of  its 
treasures."1 

No  religious  zeal  prompted  the  English  nation  in  their 
participation  in  the  African  slave-trade.  In  1553,  we 
are  informed  by  Hakluyt,  twenty-four  negro  slaves  were 
brought  to  England  from  the  coast  of  Africa.  The  vir- 
tuous indignation  of  the  people  seems  not  to  have  been 
aroused,  but  the  slaves  were  quietly  sold  as  in  other 
markets.  The  introduction  of  negro  slaves  into  that 
country  continued  without  question  as  to  its  legality, 
until  the  trial  of  the  celebrated  Somersett  case,  in  1771, 
when  it  was  discovered  that  even  as  far  back  as  the 
eleventh  year  of  Elizabeth's  reign,  in  the  case  of  the 
Russian  slave,  it  had  been  solemnly  adjudged  that  the 
air  of  England  was  too  pure  for  a  slave  to  breathe  in.  And 
yet  strange  to  say,  in  1  Edward  VI,  c.  iii,  certain  vaga- 
bonds and  idle  servants  were  by  Parliament  declared  to 
be  slaves  to  their  masters  ;  and  still  stranger,  while  the 
Russian  slave  was  thus  enjoying  the  pure  air  of  England, 
the  virtuous  Elizabeth  was  sharing  the  profits  and  par- 
ticipating in  the  crimes  of  the  African  slave-trade.* 

Sir  John  Hawkins  has  the  unenviable  distinction  of 
being  the  first  English  captain  of  a  slave-ship,  about  the 
year  1562.  His  first  cargo,  landed  in  Hispaniola,  yielded 
a  rich  return  in  the  tropical  production  with  which  his 
ships  returned  laden  to  England.  The  news  of  his  suc- 
cess attracted  the  notice  of  the  reigning  sovereign  Eliza- 

1  Prescott's  Ferdinand  and  Isabella,  Pt.  II,  ch.  xxvi. 

2  Barrington,  on  Statutes,  312,  and  N.  S.     The  present  philanthropists 
of  Britain  are  greatly  horrified  at  the  advertisements  in  American  news- 
papers, carefully  collated  by  American  abolitionists.     To  such  we  com- 
mend the  files  of  old  English  journals,  in  the  British  Museum;  where 
they  will  find  negro  runaways  and  negro  sales  advertised,  with  as  much 
naivetS  as  their  virtuous  ancestors  could  assume.     See  London  Quarterly 
Review,  1855,  Art.  Advertising. 


NEGRO    SLAVERY   AND   THE   SLAVE-TRADE.          Cxliii 

beth,  and  in  the  subsequent  expeditions  of  this  most 
heartless  manstealer,  she  was  a  partner  and  protector. 
The  account  given  by  an  eye-witness  of  one  of  these 
expeditions,  exhibits  an  amount  of  brutal  atrocity  and 
heartless  cruelty  but  seldom  equalled  and  never  surpassed 
in  the  subsequent  history  of  the  slave-trade.1  During 
the  reign  of  James  I  (1618),  a  charter  was  granted  to  Sir 
Robert  Rich  and  his  associates,  merchants  of  London, 
for  the  exclusive  privilege  of  carrying  on  the  slave-trade 
from  the  coast  of  Guinea.  A  second  charter  was  granted 
to  a  company  during  the  reign  of  Charles  I  (1631),  and 
so  extensive  were  their  operations,  that  at  vast  expense 
they  erected  numerous  forts  and  warehouses  on  the 
coast  of  the  West  Indies  for  the  defence  of  their  com- 
merce. During  the  reign  of  Charles  II  (1662),  a  third 
company  with  exclusive  privileges  was  chartered.  The 
Duke  of  York,  the  King's  brother,  was  at  the  head  of 
this  company.  They  engaged  to  furnish  the  West  In- 
dian colonies  with  three  thousand  slaves  annually. 

In  1672,  the  fourth  and  last  exclusive  company  was 
chartered,  under  the  name  of  the  Royal  African  Com- 
pany, including  among  its  stockholders,  the  King,  his 
brother,  the  Duke  of  York,  and  others  of  distinguished 
rank.  This  Company  continued  its  existence  until  the 
Revolution  in  1688,  when  Parliament  abolished  all  ex- 
clusive charters.  They  continued  their  operations,  how- 
ever, seizing  the  ships  of  private  traders.  In  1698,  the 
trade  to  the  African  coast  was  by  Act  of  Parliament 
made  free  to  all  persons,  upon  the  payment  of  certain 
duties  ;  negroes  and  gold,  however,  were  exported  free 
of  duty.  This  act  operating  hardly  upon  the  "  Royal 
African  Company,"  Parliament  voted  them  annually 
from  1739  to  1746,  £10,000.2 

1  Edwards's  West  Indies,  ii,  355,  et  seq. ;  Bancroft's  United  States,  i, 
173.  Rev.  John  Newton,  in  his  Thoughts  upon  the  African  Slave- 
Trade,  p.  33,  bears  testimony  to  the  humanity  of  the  Portuguese  traders, 
and  to  the  contrary  and  cruel  and  selfish  policy  of  the  English  traders. 

*  Edwards's  West  Indies,  ii,  359-363.    The  magnitude  of  the  trade 


CxllV  HISTORICAL   SKETCH   OF   SLAVERY. 

But  while  the  monopoly  of  the  Company  was  destroyed, 
the  monopoly  of  British  subjects  in  furnishing  slaves  to 
British  colonies  was  strictly  secured.  Ten  judges  (among 
them  Holt  and  Pollexfen),  declared  that  "  negroes  are 
merchandise,"  and  hence,  within  the  Navigation  Acts.1 

France  was  not  blind  to  the  vast  profits  arising  from 
the  trade,  nor  remiss  in  taking  measures  for  supplying 
her  colonies  with  slaves,  the  source  of  their  wealth,  and 
also  in  protecting  the  trade  with  the  African  coast,  and 
by  proper  regulations.2 

Portuguese  and  French  companies,  at  sundry  times, 
procured  assientoes  from  the  Spanish  government,  grant- 
ing to  them  the  privilege  of  furnishing  slaves  to  the 
Spanish  colonies.  At  the  conclusion  of  that  granted  to 
the  Royal  Guinea  Company  of  France,  in  1713,  a  treaty 
was  entered  into  between  Philip  V,  King  of  Spain,  and 
Anne,  Queen  of  Great  Britain,  by  which  the  privilege 
of  furnishing  negro  slaves  to  the  Spanish  West  Indies, 
Buenos  Ayres,  and  other  Spanish  colonies,  was  secured 
to  British  subjects.  This  treaty  was  to  last  for  thirty 
years,  within  which  time  at  least  144,000  negroes  were 
to  be  imported.  The  Spanish  sovereign  reserved  to  him- 
self a  duty  per  capita  on  the  negroes,  and  also  one-fourth 
the  net  profits,  as  well  as  five  per  cent,  upon  the  remain- 
ing three-fourths.  He  bound  himself  to  furnish  one  vessel 
of  five  hundred  tons  burthen.  Her  Britannic  Majesty's 
share  of  the  profits  is  recognized  by  the  treaty  (Sec.  29), 
but  the  exact  amount  is  not  specified.3  A  distinct 
tribunal  is  established  for  the  ascertainment  and  settle- 

with  Africa,  at  this  time,  is  hardly  appreciated  by  those  who  have  not 
made  it  a  subject  of  inquiry.  The  curious  are  referred  to  a  very  full 
table,  showing  the  amount  of  merchandise  sent  in  British  vessels,  from 
1701  to  1787,  in  McPherson's  Annals  of  Commerce,  iv,  153. 

1  3  Bancroft's  United  States,  414. 

2  Valin,  torn,  i,  411 ;  cited  in  2  Mason  Rep.  420. 

3  Bancroft  says  one-fourth,  and  this  seems  to  be  the  intention ;  vol.  ii, 
p.  232. 


NEGRO    SLAVERY   AND   THE   SLAVE-TRADE.  Cxlv 

ment  of  the  shares  of  these  high  contracting  parties,  and 
extraordinary  privileges  are  granted  for  the  collection 
from  the  purchasers,  of  the  price  of  the  slaves.1  Her 
Majesty,  in  her  speech  to  Parliament  announcing  this 
treaty,  boasted  of  her  success  in  securing  to  Englishmen 
a  new  market  for  slaves. 

Not  only  the  fact  of  the  making  of  this  treaty,  and  of 
the  royal  partners  in  the  enterprise,  but  the  contents  of 
the  paper  itself,  show  the  sentiment  of  the  day  in  rela- 
tion to  this  subject.  The  eighth  section  declares,  that 
experience  has  shown  the  prohibition  to  import  negroes 
into  certain  provinces  to  be  very  prejudicial  to  the  inte- 
rest of  his  Catholic  Majesty;  "it  being  certain  that  the 
provinces  which  have  not  had  them,  endured  great  hard- 
ships for  want  of  having  their  lands  and  their  estates 
cultivated,  from  which  arose  the  necessity  of  using  all 
imaginable  ways  of  getting  them,  even  though  it  were 
fraudulently." 

The  provisions  of  this  treaty  also  indicate  the  care 
taken  for  the  health  and  comfort  of  the  slaves  during 
the  passage.  Twelve  hundred  being  required  for  Buenos 
Ayres  and  Chili,  it  is  provided,  that  four  large  vessels 
shall  be  used  in  their  transportation.  Other  sanitary 
regulations  were  prescribed.  While  the  trade  was  thus 
regulated  by  law,  the  "  horrors  of  the  middle  passage" 
were  not  enacted,  at  least  to  the  extent  which  was  sub- 
sequently developed. 

The  non-payment  to  Spain  of  the  amounts  due  her 
under  this  treaty,  was  the  principal  cause  of  the  war 
declared  in  1739,  and  ended  by  the  peace  at  Aix-la-Cha- 
pelle,  in  1748.3 

By  various  acts  of  Parliament,  the  trade  in  slaves  was 
regulated  and  encouraged.  As  late  as  23d  George  II 
(1749-50),  we  find  indirect  encouragement  given  to  the 

1  This  treaty  may  be  found  in  full,  in  Collection  of  Treaties,  vol.  iii, 
375,  London,  1782.  *  Smollett's. Hist.  Bk.  II,  ch.  vL 

j 


HISTORICAL   SKETCH   OF  SLAVERY. 

traffic,  in  the  "Act  for  extending  and  improving  the 
trade  to  Africa ;"  and  the  fact  is  spread  upon  the  statute- 
book,  that  "the  slave-trade  is  very  advantageous  to 
Great  Britain."  The  last  act  regulating  the  trade  was 
passed  in  1788. 1 

In  the  meantime  large  numbers  of  negro  slaves  were 
introduced  into  the  British  Isles,  and  were  held  in  sub- 
jection without  question  as  to  their  master's  title.  At 
one  time,  the  negro  page  was  indispensable  to  the  Eng- 
lish lady  on  her  daily  walks  through  the  city  thorough- 
fares; and  for  fear  "the  pure  air  of  Britain"  might 
engender  beneath  his  thick  skull  some  idea  of  liberty, 
the  collar,  known  to  the  Roman  slave,  was  fastened 
around  his  neck,  with  the  name  and  residence  of  his 
mistress  neatly  engraved  thereon.8 

The  other  nations  of  Europe  did  not,  as  we  have  seen, 
leave  this  profitable  trade  entirely  in  the  hands  of  the 
English.  The  Portuguese  furnished  not  only  their  AVest 
Indian  colonies,  but  also  their  East  Indian  possessions, 
the  latter  trade  being  supplied  from  Mozambique.  To 
insure  humane  treatment,  they  used  negro  seamen,  and 
offered  premiums  for  every  slave  transported  safely.3 
The  Dutch  carried  on  a  similar  trade  to  their  colonies, 
confining  the  privilege  to  their  own  vessels.4  The 
French  government,  to  encourage  the  trade,  in  the  year 
1784,  gave  a  bounty  of  forty  livres  upon  every  ton  of 
the  vessels  employed  therein,  and  a  premium  of  sixty  to 
one  hundred  livres  for  every  negro  carried  to  their  dif- 
ferent colonies.5 

1  Anderson's  Hist,  of  Commerce,  vi,  905. 

2  See  London  Quarterly  Review,  1855,  Art.  Advertising.     The  follow- 
ing is  from  the  London  Gazette,  1694 :  "  A  black  boy,  an  Indian,  about 
13  years  old,  run  away  on  the  8th  inst,  from  Putney,  with  a  collar  about 
his  neck,  with  this  inscription,  'The  Lady  Brorafield's  black,  in  Lincoln's 
Inn  Fields.'     Whoever  brings  him  to  Sir  Edward  Bromfield's,  at  Putney, 
shall  have  a  guinea  reward."   See  a  similar  statement  in  Granville  Sharp's 
Just  Limitation  of  Slavery,  p.  34. 

3  McPherson's  Annals  of  Commerce,  iv,  164. 

4  Ibid.  165.  «  Ibid. 


NEGRO    SLAVERY    AND    THE    SLAVE-TRADE. 

In  1607,  the  first  successful  English  colony  was  landed 
at  Jamestown,  in  Virginia.  Thirteen  years  thereafter 
(1620),  a  Dutch  man-of-war  landed  twenty  negro  slaves 
for  sale.  This  was  the  germ  of  negro  slaveholding  in 
the  territory  now  occupied  by  the  United  States  of 
America.1  The  Spaniards  may  have  introduced  them  at 
an  earlier  day  in  Florida,  but  of  this  we  have  no  certain 
knowledge.  During  the  next  year  (1621),  the  cotton 
plant  was  first  cultivated  in  the  new  province.3  The 
negro  and  the  cotton  plant  seem  to  be  natural  allies,  and 
there  was  something  ominous  in  their  almost  simulta- 
neous introduction  into  the  New  World.  For  many 
years,  the  number  of  negroes  in  Virginia  was  compara- 
tively small;  the  introduction  of  the  cultivation  of 
tobacco  increased  the  demand,  and  finally  impressed 
upon  Virginia  and  Maryland  the  position  of  slaveholding 
States. 

The  enterprise  of  E"ew  England  was  not  tardy  in 
availing  itself  of  the  prospect  for  gain,  held  out  in  the 
cheap  labor  of  negro  slaves,  and  the  rich  returns  of  the 
slave-trade.3  Among  the  "fundamentals,"  or  body  of 
liberties  adopted  in  Massachusetts,  as  early  as  1641,  we 
find  the  distinct  recognition  of  the  lawfulness  of  Indian 
and  negro  slavery,  as  well  as  an  approval  of  the  African 
slave-trade.4  The  Puritans,  however,  insisted  that  the 
traffic  should  be  confined  to  those  who  were  captives  in 
war  and  slaves  in  Africa.  Hence,  when,  in  1644  or  1645, 
a  Boston  ship  returned  with  two  negroes  captured  by 

1  Beverly's  Virginia,  35 ;    1  Bancroft's  United  States,  176 ;  Cooper's 
Naval  History,  25. 

2  1  Bancroft,  179.     The  coffee-tree  was  introduced  in  the  West  Indies, 
about  the  beginning  of  the  eighteenth  century.     There  is  a  species  of 
coffee  indigenous  to  these  islands,  but  not  the  one  cultivated.     Du  Tour 
says,  that  a  tree,  sent  by  the  magistrates  of  Amsterdam  to  Louis  XIV, 
in  1714,  is  the  parent  of  all  those  subsequently  introduced  into  the  West 
Indies.     See  Rees's  Encyc.  "Coffee." 

3  See  Remarks  of  Goodall,  Slavery  and   Anti-Slavery,  p.  11.      He 
thinks  "the  scent  of  the  roses  hangs  round  it  still."    4  1  Hild.  Hist.  278. 


HISTORICAL   SKETCH   OF   SLAVERY. 

the  crew,  in  a  pretended  quarrel  with  the  natives,  the 
General  Court  ordered  them  to  be  restored  to  their  native 
land.1  In  1754,  hy  an  official  census,  there  appears  to 
have  heen  2448  negro  slaves  over  sixteen  years  of  age 
in  Massachusetts — about  1000  of  them  in  the  town  of 
Boston.  Manumission  was  allowed,  but  only  upon  secu- 
rity that  the  freed  negroes  should  not  become  a  burden 
upon  the  parish.2 

Connecticut  was  not  free  from  the  "  sin  of  slavery." 
In  1650,  Indians  who  failed  to  make  satisfaction  for  in- 
juries were  ordered  to  be  seized  and  delivered  to  the 
injured  party,  "  either  to  serve  or  to  be  shipped  out  and 
exchanged  for  negroes,  as  the  case  will  justly  bear."  In- 
solvent debtors  also  were  authorized  to  be  sold  to  English 
purchasers,  and  the  proceeds  applied  to  their  debts. 
Negro  slavery  had  been  abolished  in  Connecticut  many 
years  before  the  latter  provision  was  expunged  from  the 
statute-book.3  The  proportion  of  slaves  to  freemen  was 
greater  in  Connecticut  than  in  Massachusetts.4 

Ehode  Island  joined  in  the  general  habit  of  the  day, 
with  the  exception  of  the  town  of  Providence.  The 
community  of  the  heretical  Roger  Williams,  alone 
placed  the  services  of  the  black  and  the  white  races  on 
the  same  footing  and  limitation.5  In  the  plantations 
generally,  slaves  abounded  to  a  greater  extent  than  in 
any  other  portion  of  New  England,  and  in  Newport,  the 
second  commercial  town  of  New  England,  there  was  a 
greater  proportion  of  slaves  than  in  Boston.6 

As  early  as  1626,  the  West  India  Company  imported 
negro  slaves  among  the  quiet  burghers  of  New  Am- 
sterdam. The  city  itself  owned  shares  in  a  slave-ship, 
advanced  money  for  its  outfit,  and  participated  in  the 
profits.  The  slaves  were  sold  at  public  auction  to  the 

'  1  Hild.  282.  2  2  Hild.  419.  3  1  Hild.  372. 

4  2  Hild.  419.  Goodall  gives  some  instances  of  cruel  rigor  in  this 
State,  Slavery  and  Anti-Slavery,  pp.  11-13.  I  do  not  vouch  for  him  as 
reliable  authority.  5  1  Hild.  373.  6  2  Hild.  419. 


NEGRO    SLAVERY   AND    THE    SLAVE-TRADE.          Cxlix 

highest  bidder,  and  the  average  price  was  less  than  $140. 
Stuyvesant  was  instructed  to  use  every  exertion  to  pro- 
mote the  sale  of  negroes.  "  That  New  York  is  not  a 
slave  State  like  Carolina,"  says  a  distinguished  historian, 
"  is  due  to  climate  and  not  to  the  superior  humanity  of 
its  founders."1  In  New  Netherlands,  negroes  were  em- 
ployed as  agricultural  laborers  as  well  as  domestics.  In 
the  city  of  New  York,  about  the  year  1750,  the  slaves 
constituted  one-sixth  of  the  population.  The  slave  code 
differed  but  little  from  that  of  Virginia.2 

New  Jersey,  it  is  known,  was  dismembered  from  New 
York  when  New  Netherlands  was  conquered  by  Eng- 
land in  1664.  In  the  next  year,  a  bounty  of  seventy-five 
acres  of  land  was  offered  by  the  proprietaries  for  the  im- 
portation of  each  able-bodied  slave.  This  was  doubtless 
done  in  part  to  gain  favor  with  the  Duke  of  York,  then 
President  of  the  African  Company.3 

The  Quakers  of  Pennsylvania  did  not  entirely  eschew 
the  holding  of  negro  slaves.  It  is  a  mooted  question 
whether  William  Penn  himself  did  or  did  not  die  a  slave- 
holder.4 In  1712,  to  a  general  petition  for  the  emancipation 
of  negro  slaves  by  law,  the  response  of  the  Legislature  of 
Pennsylvania  was,  "It  is  neither  just  nor  convenient  to 
set  them  at  liberty."5  As  early  as  1699,  Penn  had  pro- 
posed to  provide  by  law  for  the  marriage,  religious  in- 
struction, and  kind  treatment  of  slaves,  but  there  was  no 
response  from  the  legislature.  Slaves,  however,  were 
never  numerous  in  Pennsylvania,  and  manumissions 
were  frequent.  The  larger  portion  were  to  be  found  in 
Philadelphia,  one-fourth  of  the  population  of  which, 
about  the  year  1750,  are  supposed  to  have  been  of  Afri- 
can descent.6 

The  Swedish  and  German  colony  of  Gustavus  Adol- 
phus,  who  formed  the  nucleus  of  the  subsequent  State 

1  2  Bancroft,  303.  2  2  Hild.  419.  3  2  Bancroft,  316. 

4  2  Bancroft,  401,  and  n.  1 ;  1  Stephens's  Hist,  of  Georgia,  286. 
6  3  Bancroft,  408.  •  2  Hild.  420. 


Cl  HISTORICAL   SKETCH    OF    SLAVERY. 

of  Delaware,  was  designed  to  rest  on  free  labor ;  and 
although  negro  slavery  crept  in  among  them,  as  early  as 
1688,  the  German  friends  resolved  that  it  was  not  lawful 
for  Christians  to  buy  or  keep  negro  slaves.1  Yet  slavery 
retained  its  foothold,  and  to  this  day  Delaware  is  ranked 
among  the  slaveholding  States. 

North  Carolina,  from  its  climate  and  soil,  became  an 
inviting  field  for  slave  labor,  and  though  many  of  its 
early  settlers  were  Quakers,  negro  slavery  soon  obtained 
a  sure  foothold. 

In  South  Carolina  slavery  was  planted  simultaneously 
with  the  colony.  Sir  John  Yeamans  brought  African 
slaves  with  him  from  Barbadoes  in  1671.  The  climate 
was  congenial  to  the  negro,  while  the  miasma  of  the 
swamps  was  fatal  to  the  white  laborer.  The  prosperity 
and  wealth  of  the  planter  was  in  proportion  to  the  num- 
ber of  his  slaves,  and  hence,  at  a  very  early  day,  "  to  buy 
more  slaves"  was  the  great  object  of  his  desire.2  It  is 
not  astonishing,  therefore,  that  the  race  multiplied  so 
rapidly  by  importations,  that  in  a  few  years  the  whites 
constituted  but  little  over  one-third  of  the  population.3 

Georgia,  on  the  other  hand,  is  the  only  colony  in 
which  slavery  was  positively  prohibited  by  its  organic 
law.  Rum,  Papists,  and  negroes,  were  all  excluded  from 
the  new  colony ;  the  former  because  experience  had 
proved  it  to  be  the  bane  of  the  colonist,  and  the  destruc- 
tion of  his  neighbor,  the  Indian ;  the  last,  not  from 
any  principles  of  humanity  to  the  negro,*  but  as  a  mat- 
ter purely  of  policy ;  to  stimulate  the  colonists  to  personal 
exertions;  to  provide  a  home  for  the  poor  and  starving 
population  of  the  mother  country ;  to  create  a  colony 
densely  populated  with  whites,  to  serve  as  a  barrier 

1  2  Bancroft,  401.  2  Wilson's  Carolina,  17. 

3  2  Bancroft,  171. 

4  Oglethorpe  himself  was  Deputy-Governor  of  the  Royal  African  Com- 
pany, and  owned  a  plantation  and  slaves,  in  South  Carolina.     1  Stephens, 
287,  288. 


NEGRO  SLAVERY  AND  TUE  SLAVE-TRADE.      Cll 

against  incursions  from  the  Spanish  settlements  in 
Florida,  and  also  to  promote  the  cultivation  of  silk  and 
wine,  to  which  the  negro  was  by  no  means  adapted.  The 
trustees  provided  laborers  in  indented  white  servants,  in 
their  judgment  better  adapted  to  the  wants  of  the  colo- 
nists. Experience  soon  proved  the  fallacy  of  their  rea- 
soning. The  contests  between  them  and  the  colonists 
were  unceasing  and  stubborn  on  this  point.  The  best 
and  wisest  of  the  latter  joined  in  the  universal  demand 
for  slave  labor.  The  Salzburghers  of  Ebenezer,  accus- 
tomed to  the  labors  and  exposures  of  husbandry  at  home, 
for  a  time  maintained  the  policy  of  the  trustees.  But 
the  white  servants  imported,  for  more  than  half  the  year 
(from  March  till  October),  were  utterly  unable  to  do  ser- 
vice, and  to  so  deplorable  a  state  did  the  colony  arrive, 
that  at  last  the  pastor  of  these  hardy  Germans  (Mr. 
Bolzius),  beseeched  the  trustees  "  not  to  regard  any 
more  our  or  our  friends'  petitions  against  negroes."  The 
great  and  good  Habersham,  and  the  Rev.  George  White- 
field,  the  celebrated  divine,  were  the  most  efficient  advo- 
cates, in  behalf  of  the  colonists,  in  obtaining  a  removal 
of  this  restriction.  The  purity  of  their  motives,  and 
their  opportunities  for  personal  observation,  convinced 
those  who  had  been  deaf  to  the  clamors  of  the  people. 
The  latter  distinguished  man  was  himself  a  planter  and 
a  slaveholder,  within  the  borders  of  South  Carolina,  the 
proceeds  of  his  farm  being  devoted  to  his  darling  charity, 
the  orphan-house  at  Bethesda.  In  1749,  the  restric- 
tion was  finally  removed,  after  a  struggle  of  fifteen 
years.  At  this  time  Georgia  numbered  only  fifteen  hun- 
dred inhabitants,  and  the  condition  of  "  her  borders"  was 
anything  but  "blest."  Her  climate  and  her  soil  demanded 
negro  laborers,  and  her  resources  began  to  be  developed 
when  this  demand  was  supplied.1 

The  negroes  thus  introduced  into  America,  were  gross 

1  1  Stephens's  Hist,  of  Georgia,  ch.  ix. 


dii  HISTORICAL   SKETCH   OP   SLAVERY. 

and  stupid,  lazy  and  superstitious.  "With  an  occasional 
exception  of  a  captive  warrior,  they  were  only  trans- 
ferred from  the  slavery  of  a  savage  to  that  of  a  civilized 
and  Christian  master.1  It  is  true  that  their  enslavement 
was  justified  on  the  plea  that  they  were  heathen,  and 
that,  for  a  time,  the  idea  prevailed  extensively,  that  upon 
baptism  they  were  enfranchised;  but  the  opinions  of 
Talbot  and  Yorke,  the  attorney  and  solicitor  general  of 
England,  in  1729,  in  reply  to  the  inquiry  of  the  planters, 
satisfied  their  minds  that  this  proposition  was  legally 
untrue ;  while  the  declaration  of  Gibson,  the  Bishop  of 
London,  about  the  same  time,  that  "  Christianity  and 
the  embracing  of  the  Gospel  does  not  make  the  least 
alteration  in  civil  property,"  quieted  their  consciences 
as  to  the  moral  question.  To  make  "assurance  doubly 
sure,"  however,  the  Legislature  of  South  Carolina,  in 
1712,  of  Maryland,  in  1692  and  1715,  and  of  Virginia,  at 
sundry  times  from  1667  to  1748,  denied  to  baptism  the 
supposed  effect.2  To  the  fact  of  their  improved  condi- 
tion, as  well  as  their  natural  constitution  and  habit,  the 
want  of  a  common  language,  a  common  sympathy,  and 
a  common  grief,  may  be  attributed  the  absence  of  any 
concerted  attempt  at  rebellion,  even  in  those  colonies 
where  they  outnumbered  the  white  population. 

We  cannot  determine,  with  accuracy,  the  number  of 
negroes  imported  into  the  Colonies  prior  to  their  inde- 
pendence. Bancroft,  the  historian,  estimates  the  num- 
ber, up  to  1740,  at  130,000 ;  and  prior  to  1776,  at  300,000. 
His  estimate  is  as  reliable  as  any  we  can  make.3  The 
colonies  to  which  the  largest  -number  were  brought, 

1  As  an  evidence  of  the  early  attention  paid  to  their  Christian  teaching, 
see  the  provisions  made,  when  first  admitted  in  Georgia.     1  Stephens, 
312. 

2  3  Bancroft,  408,  409  ;  2  Hild.  426 ;  Plantation  Laws  (1704),  Mary- 
land, p.  50. 

3  Vol.  iii,  p.  407.     Mr.  Carey's  estimate  is  333,000  for  the  entire  impor- 
tation.   See  his  "  Slave  Trade,"  ch.  3. 


NEGRO    SLAVERY   AND    THE    SLAVE-TRADE.  cliii 

were  not  unmindful  spectators  of  this  continual  influx 
of  barbarians ;  and  hence,  we  find  Virginia,  Maryland, 
and  Carolina,  not  only  remonstrating,  but  passing  laws, 
designed  to  restrict  their  importation.  But  the  trade 
was  profitable  to  the  mother  country.  Every  slave  added 
to  the  treasury.  British  capital  and  British  commerce 
were  too  deeply  engaged  in  the  traffic  for  the  voice  of 
the  Colonies  to  be  heard,  or  their  interests  to  prevail ; 
and  hence  the  veto  of  royal  governors,  and  the  with- 
holding of  the  royal  assent,  which  continually  frustrated 
the  will  of  the  people.1  The  Continental  Congress  of 
1776  resolved,  that  "  no  slaves  be  imported  into  any  of 
the  thirteen  United  Colonies."2  After  the  recognition  of 
the  independence  of  the  States,  the  Convention  which 
framed  the  Constitution  of  the  United  States  were 
unanimous  in  putting  a  limit  upon  the  introduction  of 
negroes.  Massachusetts,  whose  merchants  were  engaged 
in  the  slave-trade,  joined  with  Georgia  and  South  Caro- 
lina in  demanding  a  few  more  years  ere  the  final  prohi- 
bition.3 The  year  1808  was  agreed  upon.  Yet,  in  1798, 
Georgia,  of  her  own  accord,  incorporated  into  her  or- 
ganic law  a  prohibition  of  the  slave-trade.  It  may  not 
be  amiss  here  to  allude  to  the  fact,  that  this  action  of 
America,  in  her  Convention,  in  1789,  was  eighteen  years 
in  advance  of  the  British  government ;  and  that  it  re- 
quired a  struggle  of  twenty  years,  the  last  throes  of  which 
were  felt  in  1807,  to  enable  British  philanthropy  to  rise 
to  the  point  to  which  Georgia  attained  in  1798  ! 

1  Another  reason  given  by  "A  British  Merchant,"  in  a  pamphlet  issued 
at  the  time,  was,  that  white  emigrants  became  freemen,  and  might  become 
troublesome.    The  increase  of  slaves  increased  dependence  on  the  mother 
country. 

2  Journals  of  Congress,  i,  307.     The  original  frame  of  the  Declaration 
of  Independence,  contained,  as  one  of  the  grievances  of  the  Colonies,  this 
withholding  of  the  royal  assent. 

3  The  State  of  Ehode  Island  alone  numbered  fifty-four  vessels  engaged 
in  the  slave-trade,  at  the  period  when  the  Act  of  Prohibition  took  effect. 


Cliv  HISTORICAL   SKETCH   OF   SLAVERY. 


The  entire  number  of  slaves  exported  from  Africa 
prior  to  1776,  has  been  variously  estimated.  Raynal 
adopts  the  large  sum  of  nine  millions.  The  German 
historian,  Albert  Hune,  considers  this  estimate  too  small. 
The  lowest  is  three  and  a  quarter  millions.  More  than 
one-half  of  these  were  carried  in  English  ships  ;  and  the 
profits  from  this  traffic,  to  English  merchants,  is  Bup- 
posed  to  have  been  at  least  four  hundred  millions  of 
dollars.1 

Since  1776,  the  numbers  exported  from  Africa  have 
been  variously  estimated.  Notwithstanding  the  efforts 
of  Great  Britain,  France,  and  the  United  States,  to  re- 
press the  trade,  the  demand  for  the  slaves  has  caused  a 
supply  of  a  larger  annual  exportation  than  there  ever 
was  while  •  the  trade  was  free.  It  is  estimated,  that 
during  the  whole  continuance  of  the  traffic,  legal  and 
illegal,  full  forty  millions  of  negroes  have  been  exported 
from  Africa.3 

The  immense  supply  of  slaves  (near  75,000  annually), 
necessarily  caused  most  wretched  cruelties  to  be  prac- 
tised by  the  petty  kings  and  slave-dealers  on  the  African 
coast.  From  the  great  river  Senegal  to  the  farther  limits 
of  Angola,  a  distance  of  many  thousand  miles,  the  entire 
coast  was  visited  to  furnish  this  supply.  The  interior, 
especially  along  the  banks  of  the  rivers,  yielded  its 
quota  to  the  general  demand.  Numerous  tribes  in- 
habited this  vast  extent  of  country,  and  consequently 
great  differences  existed  in  the  color,  nature,  habits,  and 
dispositions  of  the  negroes  exported.  Prominent  among 
these  were  the  Mandingoes,  Koromantyns,  Whidahs  or 
Fidahs,  Eboes,  and  Congoes.  The  first  were  considered 
the  most  elevated  and  farthest  removed  from  the  pure 
type.  The  second,  from  the  Gold  Coast,  were 


1  3  Bancroft,  411,  412  ;  see  Edwards's  West  Indies,  vol.  ii,  p.  368,  et 
seq.  In  the  year  1771,  there  sailed  from  England  alone,  192  ships,  pro- 
vided for  the  exportation  of  47,146  slaves.  Copley's  Hist,  of  Slavery, 
114.  2  M.  Schcelcher,  Colonies  Etrangeres,  i,  386. 


NEGRO  SLAVERY  AXD  THE  SLAVE-TRADE.      civ 

the  most  stubborn,  unruly,  rebellious,  and  intrepid.  The 
Whidahs  were  the  most  thievish  ;  and  the  Eboes  from 
Benin,  the  most  timid  and  dejected.  Their  peculiarities 
were  soon  discovered;  and  hence,  upon  the  arrival  of  a 
slave-ship,  the  advertisement  always  gave  notice  of  the  \ 
tribes  from  which  they  were  purchased.1  — — \ 

The  passage  from  Africa  to  the  Colonies  was  the  most  \  .. 
trying  period  in  the  sufferings  of  the  slaves.  The  "  hor-  V** 
rors  of  the  middle  passage"  have  been  sung  by  poets?-p_J 
and  minutely  described  by  eye-witnesses.  Nothing 
aided  so  much  to  the  final  prohibition  of  the  trade.  Yet 
doubtless  these  "horrors"  have  been  exaggerated.  The 
cupidity  and  avarice  of  the  dealer  tempted  him  to  over- 
load his  small  vessel.  Yet  experience  soon  taught  that 
the  consequent  pestilence  and  decimation  of  his  cargo, 
more  than  overbalanced  his  gains.  Self-interest  co-ope- 
rated with  humanity  in  demanding  a  proper  regard  to  the 
health  and  comfort  of  the  victims.  The  slaves  were  trans- 
ported naked.  Yet  clothing  was,  to  them,  an  unknown  and 
unnecessary  luxury.  The  males  were  secured  with  irons 
when  put  on  board,  but  these  were  removed,  unless  they 
proved  unruly  and  rebellious.  The  decks,  between 
which  they  were  stowed  side  by  side  like  bales  of  goods, 
were  only  high  enough  to  allow  a  sitting  posture.  Yet 
the  day  was  spent  on  the  upper  deck,  and  ample  provi- 
sion made  for  ventilation  ;  while  cleanliness  was  enforced 
as  a  matter  of  necessity.  Wholesome  and  bountiful 
food  was  provided,  as  a  matter  of  calculation  for  the  im- 
provement of  their  appearance.  While  bathing  and 
other  sanitary  regulations  were  of  universal  practice.2 

1  Edwards's  West  Indies,  ii,  ch.  xvi. 

2  Edwards's  West  Indies,  ii,  ch.  xvii ;  Capt.  Canot,  &c.,  ch.  xi ;  Bux- 
ton's  Slave-Trade  and  Remedy,  Pt.  I,  ch.  ii.     The  great  and  good  John 
Newton  was  once  engaged  in  the  trade,  and  was  captain  of  a  slave-ship. 
His  Thoughts  upon  the  African  Slave-Trade  give  a  candid,  and  doubt- 
less, truthful  account  of  the  trade,  as  he  knew  it.     They  will  be  found  to 
agree  substantially  with  the  text.     See  also  McPherson's  Annals  of  Com- 
merce, vol.  iv,  140-149. 


Clvi  HISTORICAL   SKETCH    OF   SLAVERY. 

While  this  is  the  general  truth,  instances  existed  of 
great  wretchedness  experienced  during  the  voyage.  And 
even  with  all  these  precautions,  disease  frequently  made 
sad  havoc  among  the  poor  creatures.  Avarice  and 
cupidity  too  frequently  drowned  the  voice  of  experience ; 
and  hence  we  find  the  British  Parliament,  by  statute, 
restricting  the  number  of  slaves  to  be  carried  to  five  for 
every  three  tons,  up  to  201  tons,  and  to  one  for  every  ad- 
ditional ton.  By  the  same  act,  a  well-qualified  surgeon 
was  required  on  every  vessel ;  and  as  an  inducement  to 
efficiency,  fifty  pounds  sterling  was  allowed  him,  and 
double  that  sum  to  the  master,  if  the  mortality  during 
the  voyage  did  not  exceed  two  per  cent.1 
^Of  the  slaves  exported  to  the  West  Indies  two-thirds 
were  males.  Various  causes  conspired  to  bring  about 
this  result.  A  more  even  proportion  of  females  were 
found  in  the  cargoes  intended  for  the  American  colonies. 
The  prices  varied,  but  seldom  exceeded  forty  pounds 
sterling  for  females  and  fifty  pounds  for  males.3  The 
cost  on  the  African  coast  varied  from  three  pounds  to 
twenty  pounds  sterling.3  The  profits  of  such  a  trade, 
notwithstanding  the  large  percentage  of  deaths,  are 
manifest. 

The  negroes  thus  imported  were  generally  contented 
and  happy.  The  lamentations  placed  in  their  mouths 
by  sentimental  poets,  were  for  the  most  part  without 
foundation  in  fact.  In  truth  their  situation  when  pro- 
perly treated  was  improved  by  the  change.  Careless 
and  mirthful  by  nature,  they  were  eager  to  find  a  mas- 
ter when  they  reached  the  shore,  and  the  cruel  separa- 
tions to  which  they  were  sometimes  exposed,  and  which 
for  the  moment  gave  them  excruciating  agony,  were 

1  Edwards,  413. 

*  Edwards,  427 ;  McPherson's  Annals  of  Commerce,  vol.  iv,  p.  153, 
makes  the  prices  much  lower.  The  tables  there  given  show  £10  as  the 
minimum  and  £35  as  the  maximum.  Average,  £20. 

8  MePherson's  Annals,  &c.,  iv,  153. 


NEGRO    SLAVERY   AND    THE    SLAVE-TRADE.  civil 

forgotten  at  the  sound  of  their  rude  musical  instruments 
and  in  the  midst  of  their  noisy  dances.  The  great 
Architect  had  framed  them  both  physically  and  men- 
tally to  fill  the  sphere  in  which  they  were  thrown,  and 
His  wisdom  and  mercy  combined  in  constituting  them 
thus  suited  to  the  degraded  position  they  were  destined 
to  occupy.  Hence,  their  submissiveness,  their  obedience, 
and  their  contentment. 

Some  of  the  more  turbulent  occasionally  instigated 
rebellion ;  for  their  treatment  in  the  West  India  Islands, 
and  especially  while  the  Spaniards  were  almost  exclu- 
sive owners,  was  harsh  in  the  extreme.    Newton  records, 
the  candid  confession  of  a  planter  at  Antigua,  in  1751, 
that  the  owners  had  calculated  with  exactness  to  deter- 
mine whether  it  was  most  to  their  interest  to  treat  the 
slaves  in  such  manner  as  to  protract  their  lives,  or  to 
wear  them  out  before  they  became  old  and  decrepid, 
and  to  supply  their  places  with  new  ones.     The  latter 
was  found  to  be  most  profitable,  and  was  their  settled 
policy,  and  hence,  nine  years  was  considered  the  limit 
of  a  slave's  life  on  many  plantations.1     That  such  rigor 
should  produce  rebellion  in  the  most  abject  slave  would 
be  a  natural  result.     Hence,  the  early  disturbances  in 
1518  and  1522,  already  alluded  to.     In  1551,  Charles  V 
interdicted  the  carrying  of  arms  to  all  negroes,  free  and 
bond,  and  in  1561,  Philip  IV  renewed  the  ordinance 
and  extended  it  to  the  slaves  of  the  viceroys  themselvc 
even  in  their  master's  presence.2    When  Jamaica  was 
ceded  to  the  English,  in  1655,  the  mountains  were  in- 
fested with  fugitive  and  rebellious  negroes,  known  as       1 
the  Maroons,  who  made  frequent  incursions  on  the       y 
plains.   These  continued  at  intervals  till  1796,  when,  by  ^^) 
the  aid  of  bloodhounds,  they  were  effectually  repressed. 

1  Thoughts  upon  the  African  Slave-Trade,  p.  38. 

2  La  traite  et  son  origine,  par  M.  Schoelcher,  368. 


Clviii  HISTORICAL   SKETCH    OF   SLAVERY. 

The  captives  were  transported  to  Lower  Canada  and 
afterwards  to  Sierra  Leone.1 

"The  treatment  of  the  English  colonists  on  the  Ameri- 
can continent  towards  their  slaves  was  very  different.  In 
fact,  the  relation  between  the  master  and  slave  in  the 
"West  Indies  and  in  the  English  colonies  was  totally 
different.  In  the  former,  slaves  were  merely  articles  of 
merchandise,  a  commercial  institution  worked  in  large 
numbers,  upon  vast  plantations,  under  the  care  of  agents 
frequently,  and  for  the  benefit  of  masters  whose  homes 
were  in  many  cases  in  the  mother  country.  Bought 
from  the  slave-ship,  their  language  was  an  unknown 
tongue  to  the  master,  and  the  only  communication  be- 
tween them  was  to  learn  to  understand  the  orders  to 
work  and  to  enforce  obedience  thereto.  It  being  more 
profitable  to  buy  |than  to  breed,3  instead  of  servants 
"  born  in  his  house, "the  West  India  planter  continually 
was  surrounded  with  new  supplies  of  untutored  Afri- 
cans. Having  the  sanction  of  the  Holy  See  to  the 
traffic,  his  religion  left  his  conscience  unexcited  to  the 
duties  he  owed  to  his  fellow-man,  farther  than  to  require 
the  occasional  visit  of  a  priest  or  the  distribution  of 
mass.  The  bountiful  productions  of  a  generous  soil,  in 
a  region  of  perpetual  spring,  stimulated  his  avarice  to 
give  no  rest  to  the  laborer  where  no  rest  was  required 
by  the  land.  Hence,  despite  the  humane  laws,  inhuman 
treatment  never  ceased,  though  the  government  of  some 
of  the  islands  passed  into  other  hands ;  and  notwith- 
standing the  trade  has  been  declared  piracy,  and  the 
bristling  guns  of  ships  of  war  have  striven  to  clear  the 

1  Dallas's  Wars  of  the  Maroons  ;  Schcelcher,  Colonies  Frangaises,  i,  ch. 
viii.     The  term  maroon  was  applied  to  all  fugitive  slaves.     It  seems  to 
have  originated  with  the  Spaniards,  where  it  was  called  cimarron.   Schoel- 
cher,  as  above,  102. 

2  See  Statistics  of  M.  Puynode,  as  to  rate  of  increase  in  the  French 
and  English  West  Indies,  De  1'Esclavage,  p.  35 ;  Carey's  Slave-Trade, 
Domestic  and  Foreign,  8. 


NEGRO   SLAVERY   AND   THE    SLAVE-TRADE.  clix 

seas  of  the  slave- dealers,  yet  the  ports  of  the  "West 
India  Islands  ever  afforded  a  ready  market  for  slaves  so 
long  as  slavery  was  permitted  to  exist. 

On  the  contrary,  the  English  colonists  on  the  conti- 
nent were  generally  men  of  moderate  means,  who  had 
sought  a  home  in  the  New  "World."  The  slave  bought 
from  the  slave-ship  wielded  his  axe  side  by  side  with  his 
master  in  felling  the  forest  around  his  rude  home.  He 
was  his  companion  in  wild  hunts  through  the  pathless 
woods.  A  common  danger  made  them  defend  a  com- 
mon home  from  the  wild  beast  and  the  more  cruel 
savage.  The  field  cultivated  by  their  common  labor 
furnished  to  each  his  daily  bread,  of  which  they  fre- 
quently partook  at  a  common  board.  The  more  wealthy 
master  lived  generally  in  the  midst  of  his  farm.  No 
tempting  market  enticed  him  to  forget  humanity  in  his 
search  for  gain.  The  return  of  the  labor  of  his  slaves 
was  generally  in  grain,  consumed  mostly  in  reproducing 
more.  Even  tobacco  was  exported  but  in  small  quan- 
tities. Cotton  was  reared  almost  exclusively  to  furnish 
employment  for  the  females  in  extricating  the  seed,  and 
then  by  the  flax-wheel  and  the  hand-loom,  in  providin; 
clothing  for  the  slaves  themselves.  The  culture  of  rice 
required  but  moderate  labor,  except  at  harvest.  The 
vine,  and  the  olive,  and  the  silk-worm,  were  all  sought 
to  be  introduced  in  the  more  Southern  colonies,  to  fur- 
nish employment  for  the  slaves.  With  all,  the  labor 
was  light.  The  master  was  not  therefore  tempted  to 
overwork  his  slave.  Even  upon  the  score  of  interest  it 
was  with  him  more  profitable  to  breed  than  to  buy. 
Hence,  at  an  early  day  the  females  were  brought  to  tKe"\ 
Colonies  in  numbers  far  beyond  those  carried  to  the 
islands.  To  take  care  of  the  sick,  to  shelter  and  pro- 
vide for  the  children,  to  feed  bountifully  and  clothe 
warmly,  became  the  interest  of  the  planter,  and  soon 
his  pride.  The  natural  result  of  all  these  causes  was  a 


ell  HISTORICAL   SKETCH   OF   SLAVERY. 

sympathy  between  the  master  and  slave  unknown  upon 
the  islands. 

They  stood  to  each  other  as  the  protector  and  the  pro- 
tected. The  relation  became  pati'iarchal.  The  children 
of  the  planter  and  the  children  of  his  slaves  hunted, 
fished,  and  played  together.  An  almost  perfect  equality 
existed,  in  their  sports,  between  the  future  master  and' 
his  future  slave.  To  dispense  exact  justice  to  all  was 
the  office  of  the  planter.  Obedience  and  respect  from 
all  was  his  reward.  Such  a  state  of  society  made  sla- 
very, in  the  Colonies,  a  social  institution.  It  was  upheld 
and  maintained,  not  for  gain  solely,  but  because  it  had 
become,  as  it  were,  a  part  of  the  social  system,  a  social 
necessity. 

It  is  not  strange,  therefore,  that  the  treatment  of  slaves 
upon  the  continent,  differed  widely  from  their  treatment 
upon  the  islands.  The  result  of  this  difference  is  to  be 
seen  in  the  great  and  steady  increase  of  the  negroes 
within  the  Colonies,  as  exhibited  by  the  census,  and  their 
astounding  decrease  in  the  islands,  notwithstanding  the 
constant  influx  from  the  African  coast.1 

The  slave-trade  was  not  confined  to  America  as  a 
market.  Though  to  a  much  more  limited  extent,  Eng- 
land, Spain,  and  perhaps  France,  received  a  part  of  the 
cargoes  prepared  for  the  Indies.8  At  the  time  of  the 
decision  of  the  Somersett  case,  Lord  Mansfield  supposed 
there  were  15,000  slaves  in  the  British  Isles ;  and  Lord 
Stowell,  in  the  case  of  the  slave  Grace,  says,  "  The  per- 
sonal traffic  in  slaves,  resident  in  England,  had  been  as 
public  and  as  authorized  in  London,  as  in  any  of  our 

1  See  the  instructive  and  conclusive  statistics  and  comparison,  given 
by  Carey,  in  his  Slave-Trade,  Domestic  and  Foreign. 

2  Hume,  in  his  Essay  on  National  Characters,  asserts  that  negro  slaves 
were  "dispersed  all  over  Europe;"  and  Granville  Sharp,  in  his  Essay 
on  the  Just  Limitation  of  Slavery,  quotes  the  passage  from  Hume,  and 
admits  the  fact,  pp.  29, 30.     Dr.  Beattie  does  the  same,  Essay  on  Truth, 
p.  459. 


NEGRO    SLAVERY   AND    THE    SLAVE-TRADE.  clxi 

West  India  Islands.  They  were  sold  on  the  Exchange 
and  other  places  of  public  resort,  by  parties  themselves 
resident  in  London,  and  with  as  little  reserve  as  they 
would  have  been  in  any  of  our  West  India  possessions. 
Such  a  state  of  things  continued  from  a  very  early  period 
up  to  nearly  the  end  of  the  last  century.1 

Long  before  this  trade  commenced  upon  the  western 
coast  of  Africa,  the  Mohammedan  markets  of  Morocco, 
Tunis,  Tripoli,  Egypt,  Turkey,  Persia,  Arabia,  and  other 
portions  of  Asia,  had  been  supplied  with  slaves  from  the 
great  hive  of  Africa.  When  it  commenced  we  cannot 
say.  Before  the  days  of  Abraham  doubtless.  It  has 
continued  to  the  present  time.  It  is  carried  on,  partly 
by  means  of  Arab  vessels  on  the  northeast  coast,  and 
partly  by  caravans  across  the  desert.  The  number  thus 
exported  is  probably  50,000  annually,  if  not  more.3 

1  2  Hagg.  Adm.  Rep.  105  ;  Granville  Sharp  states,  in  his  Essay  on  the 
Just  Limitation  of  Slavery,  that  three  married  women  were  torn  violently 
from  their  husbands,  in  London,  and  quotes  an  advertisement  for  a  negro 
boy,  "having  round  his  neck  a  brass  collar,  with  a  direction  upon  it,  to  a 
house  in  Charlotte  Street,  Bloomsbury  Square,"  p.  34. 

2  The  reader  disposed  to  examine  this  branch  of  the  trade  more  fully, 
is  referred  to  Buxton's  Slave-Trade  and  Remedy,  p.  59,  et  seq. ;  Leva- 
vasseur's  Esclavage  de  la  race  noire,  84. 


CHAPTER  X. 

THE   ABOLITION   OF   THE    SLAVE-TRADE. 

THAT  the  slave-trade  should  have  been  prosecuted  so 
long  by  Christian  nations,  is  a  matter  of  greater  surprise 
than  the  united  efforts  subsequently  made  for  its  aboli- 
tion. In  the  meantime,  there  were  not  wanting  those 
who  not  only  deprecated  the  trade,  but  denied  the  law- 
fulness of  the  relation  of  master  and  slave.  Milton  em- 
bodied his  protest  in  his  immortal  poem  : 

"  But  man  over  man 
He  made  not  lord,  such  title  to  himself 
Reserving,  human  left  from  human  free." 

Pope,  Cowper,  Savage,  Thomson,  Shenstone,  and  many 
others  of  less  reputation,  continued  the  strain  thus  com- 
menced, and  Montgomery  devoted  an  epic  poem  to 
the  descriptions  of  the  wrongs  of  "  Afric's  sons." 

The  prose  writers  of  England,  during  this  period,  are 
equally  numerous.  And  America  was  not  behind  in 
furnishing  her  voice  against  the  trade.  Among  the 
former  may  be  mentioned  Baxter,  Steele,  John  Wesley, 
and  Warburton.  Among  the  Americans,  Dr.  Franklin, 
Dr.  Kush,  and  William  Dillwyn,  were  among  the  most 
prominent.  Montesquieu  and  the  Abbd  Raynal,  awak- 
ened the  French  nation  to  the  importance  of  the  same 
question.  . 

As  a  body  the  Quakers,  or  Society  of  Friends,  were 
the  first  to  take  bold  position  as  to  the  sinfulness  both 


ABOLITION   OF   THE   SLAVE-TRADE.  clxiii 

of  the  trade  and  the  system.  George  Fox,  and  his  co- 
workers  on  either  shore  of  the  Atlantic,  early  recognized 
the  fact  that  God  was  no  respecter  of  persons,  and  that 
the  souls  of  Africans  were  redeemed  by  a  Saviour's 
blood,  as  well  as  those  of  the  descendants  of  Japhet.  It 
was  not  surprising  then  that  their  zeal  should  become  a 
fanaticism  upon  this  subject,  that  has  continued  to  the 
present  day.1 

As  already  observed,  the  American  colonists  were  the 
first  people,  through  their  legislative  bodies,  to  seek  to 
put  an  end  to  the  trade  with  the  colonies.  No  religious 
zeal,  nor  Quixotic  crusades  for  universal  liberty,  prompted 
them  to  act ;  but  a  sincere  self-interest,  which  dictated 
this  policy,  as  a  preventive  against  an  overflowing  black 
population.  The  trade,  however,  was  too  valuable  to 
British  merchants,  and  too  profitable  to  the  British 
treasury,  and  hence  the  royal  assent  was  repeatedly 
refused.2 

"We  have  already  seen  the  action  of  the  Continental 
Congress,  in  1776,  and  the  subsequent  adoption  into  the 
Constitution  of  the  United  States,  of  the  clause  limiting 
the  importation  to  the  year  1808,  if  Congress  should  see 
proper.  Before  the  time  arrived,  viz.,  in  1807,  Congress 
availed  itself  of  the  power  granted,  and  passed  an  act 
prohibiting  the  farther  importation  of  slaves.  Before 
that  time,  however,  Georgia,  in  1798,  by  virtue  of  her 
own  State  sovereignty,  incorporated  into  her  State  Con- 
stitution, a  prohibition  of  future  importation  into  that 

1  By  the  laws  of  Barbadoes,  passed  1696,  negroes  were  prohibited  from 
attending  the  meeting  of  Quakers,  under  a  penalty  of  10Z.,  to  be  recovered 
of  any  Quaker  present.     If  the  negro  belonged  to  the  Quaker,  he  was 
forfeited.     See  Plantation  Laws  (1704),  p.  249.     In  1663,  Virginia  pro- 
hibited the  introduction   of  Quakers,  under  a  penalty  of  5000  Ibs.  of 
tobacco  upon  the  captain  of  the  vessel.     Ibid.  52. 

2  This  was  inserted  in  the  original  draft  of  the  Declaration  of  Inde- 
pendence, as  one  of  the  grievances  of  the  Colonies,  but  was  stricken  out, 
at  the  instance  of  the  delegation  from  Georgia. 


clxiV  HISTORICAL   SKETCH   OF   SLAVERY. 

State.  South  Carolina  had  preceded  her,  by  a  legislative 
enactment  to  the  same  effect. 

To  bring  the  British  mind  to  such  a  sense  of  the  evils 
and  sin  of  the  trade,  as  to  induce  the  nation  to  forego 
the  benefits  arising  therefrom,  was  a  much  more  difficult 
task ;  and  the  fervid  zeal  of  Granville  Sharp,  the  un- 
wearying exertions  of  Thomas  Clarkson,  and  the  power- 
ful appeals  and  touching  eloquence  of  "Wilberforce,  but 
barely  effected  this  object,  after  a  parliamentary  struggle 
continuing  through  nineteen  years.  After  spending 
months  in  preparing  the  public  mind  for  the  effort,  the 
first  motion  was  made  in  Parliament  on  the  9th  May, 
1788  (the  year  subsequent  to  the  adoption  of  the  Con- 
stitution of  the  United  States).  Defeat  attended  that, 
and  a  similar  effort  in  1789.  The  accession  of  both  Pitt 
and  Fox  to  their  ranks  in  1790,  did-  not  change  the 
result.  In  1791,  there  were  arrayed  in  behalf  of  the 
movers,  Pitt,  Fox,  Burke,  Grey,  Sheridan,  Wyndham, 
Whitbread,  Courtnay,  Francis,  and  others ;  but  defeat 
still  awaited  them.  In  the  meantime,  pamphlets  and 
books  had  been  written.  Pictures  of  slave-ships,  deli- 
neating the  decks  and  the  close  confinement,  and  other 
"  horrors  of  the  middle  passage,"  had  been  distributed 
throughout  the  kingdom.  The  people  had  become  ex- 
cited, and  voluntarily  abandoned,  in  many  places,  the 
uses  of  sugar  and  rum.  In  almost  every  part  of  the 
kingdom,  public  meetings  gave  vent  to  the  public  voice, 
demanding  the  prohibition  of  the  trade.1 

In  1793,  the  Commons  yielded  to  the  public  voice,  and 
passed  an  act  for  the  gradual  abolition  of  the  trade.  It 
was  lost  in  the  Lords,  by  a  motion  to  hear  farther  evi- 
dence, which  postponed  action  till  the  next  session.  In 
1794,  the  Commons  receded  from  their  position,  and  left 
the  battle  to  be  fought  over  again.  In  1795,  it  was  again 
carried  in  the  Commons,  and  lost  in  the  Lords.  The 

1  See  Stuart's  Memoir,  pp.  51,  52. 


ABOLITION   OF   THE   SLAVE-TRADE. 

sessions  of  1796,  1798,  1799,  still  brought  defeat  to  the 
cause.  The  years  1797  and  1800, 1801,  1802,  and  1803, 
were  allowed  to  pass  without  effort  in  Parliament.  In 
1804,  the  bill  again  passed  the  Commons,  but  was  lost 
in  the  Lords.  In  1805,  it  was  again  lost  in  the  Com- 
mons. In  1806,  the  measure  was  brought  forward  under 
the  auspices  of  the  government,  being  then  under  the 
administration  of  Lord  Grenville  and  Mr.  Fox.  During 
that  session  an  act  was  passed  prohibiting  British  ves- 
sels and  British  capital  from  being  employed  in  the 
foreign  slave-trade ;  and,  in  1807,  the  last  struggle  was 
ended  by  the  "Act  for  the  abolition  of  the  slave-trade."1 

It  is  worthy  of  remark,  that  that  which  Parliament 
denied  to  the  voice  of  the  excited  public,  was  yielded 
when  that  excitement  had  passed  away,  and  then  on  the 
motion  of  government.  When  we  remember  that  Fox 
was  the  devoted  friend  of  the  East  India  Company,  and 
the  fact  that,  at  that  time,  the  project  was  rife  of  grow- 
ing sugar  in  the  East  Indies  at  a  less  cost  than  in  the 
West  Indies,  we  may  surmise  a  reason  for  the  final  suc- 
cess of  the  measure,  not  based  either  upon  philanthropy 
or  justice.8 

In  France,  Napoleon  Bonaparte,  upon  his  return  from 
Elba,  in  1815,  passed  an  order  for  the  immediate  aboli- 
tion of  the  trade.  And  in  the  same  year,  the  Congress 
at  Vienna,  representing  Great  Britain,  Austria,  Russia, 
Prussia,  and  France,  declared  the  slave-trade  to  be  "re- 
pugnant to  the  principles  of  humanity  and  of  universal 
morality ;  and  that  it  was  the  earnest  desire  of  their 
sovereigns  to  put  an  end  to  a  scourge  which  had  so  long 
desolated  Africa,  degraded  Europe,  and  afflicted  hu- 
manity." After  the  restoration  of  the  Bourbons,  the 
decree  of  Napoleon  was  re-enacted,  and  the  year  1819 

1  See  Clarkson's  History  of  the  Abolition  of  the  Slave-Trade.  A  con- 
cise history  may  be  found  in  Rees's  Cyclop.,  Slave-Trade. 

8  See  Remarks  of  Bryan  Edwards,  published  in  1794,  in  History  of 
West  Indies,  vol.  ii,  p.  637. 


HISTORICAL   SKETCH    OF   SLAVERY. 

witnessed  the  legal  abolition  of  the  trade  by  France. 
No  active  measures,  however,  were  taken  to  enforce  this 
edict  until  1831,  when  the  right  of  search  was  granted 
to  English  cruisers. 

The  treaty  of  1814,  between  Spain  and  Great  Britain, 
provided  for  the  cessation  of  the  trade  under  the  flag  of 
the  former  in  1820.  The  violations  of  the  law,  however, 
have  continued  ever  since,  notwithstanding  the  efforts 
of  a  mixed  commission  of  British  and  Spanish  judges, 
established  at  Havana,  f^r  the  condemnation  of  slavers.1 

A  quintuple  treaty  for  the  suppression  of  the  trade, 
signed  at  London,  December  20,  1841,  by  representa- 
tives of  Great  Britain,  France,  Austria,  Russia,  and 
Prussia,  allowed  a  mutual  right  of  search.  Previous  to 
that  time  a  treaty  with  the  Netherlands  in  1818,  and  with 
Brazil  in  1826,  provided  for  the  cessation  of  the  trade 
by  the  citizens  of  those  nations.  The  trade  with  Brazil, 
however,  continued  to  be  carried  on  without  any  effort 
on  the  part  ot  the  Brazilian  Government  to  prevent  it 
effectually  until  about  the  year  1850. 

The  Act  of  5  Geo.  IV,  c.  113,  declared  the  slave-trade 
to  be  piracy  in  British  subjects.  Five  years  before  that 
date  (1820),  the  United  States  had  passed  a  statute  to 
the  same  effect.  Before  these  statutes  the  trade  was 
held  to  be  legitimate  by  the  subjects  of  all  countries 
not  expressly  forbidding  it,2  and  these  statutes  do  not 
and  cannot  make  the  offence  piracy,  except  in  citizens 
of  these  respective  nations.3 

1  See  Buxton's  Slave-Trade,  &c.,  212  et  seq.     In  a  despatch  from  Lord 
Palmerston  to  Lord  Howden,  dated  Oct.  17th,  1851,  with  reference  to 
this  matter,  he  says,  "  During  the  last  fourteen  or  fifteen  years,  those 
treaty  engagements  have  been  flagrantly  violated,  and  those  laws  have 
been  notoriously  and  systematically  broken  through  in  Cuba  and  Puerto 
Rico." 

2  Judge  Story  held  to  the  contrary,  in  the  case  Le  Jeune — Eugene,  2 
Mason,  409  ;  but  this  decision,  in  the  words  of  Mr.  Wildman,  in  his 
work  on  International  Law,  is  "elaborately  incorrect." 

3  See  2  Mason,  p.  417.     The  sweeping  provisions  of  these  acts,  show 


ABOLITION   OF   THE   SLAVE-TRADE.  clxvii 

Notwithstanding  these  several  treaties  and  statutes, 
and  notwithstanding  both  Britain  and  the  United  States 
have  for  many  years  kept  a  naval  force  cruising  upon 
the  western  shores  of  Africa  along  the  Slave  Coast ;  yet 
the  trade  remains  unsuppressed  to  this  day,  and  for  a 
series  of  years  the  number  of  slaves  shipped  for  trans- 
portation was  greater  than  it  had  ever  been  while  the 
trade  was  legal  and  fostered  by  the  legislation  of 
France,  Britain,  and  Spain.  Its  illicit  character,  how- 
ever, has  added  much  to  its  enormity  and  horrors.  The 
slave-marts  have  ceased  to  be  markets  overt,  and  the 
victims  of  the  trade  are  hidden  in  prisons  and  dens  from 
the  time  they  are  brought  to  the  coast.  The  transfer  to 
the  slave-ship  is  by  night,  and  attended  with  much  dan- 
ger. The  ship  itself,  instead  of  the  large  commodious 
vessels  formerly  used,  is  of  the  narrow  clipper-built  style, 
prepared  with  a  view  to  a  chase  from  the  English  or 
American  cruiser.  The  slave  decks  are  no  longer  ven- 
tilated with  a  view  to  health,  but  placed  below  the 
hatches,  to  escape  detection,  closely  confined  and  of 
much  diminished  proportions.  The  numbers  crowded 
into  these  narrow  cells  are  much  increased,  being  no 
longer  regulated  by  law,  and  the  increased  risk  and  in- 
creased expense  requiring  increased  profits  to  the  ad- 
venturous owners.  The  persons  engaged  in  the  trade, 
of  necessity,  are  no  longer  the  enlarged  and  liberal  mer- 
chant, with  his  humane  master  and  crew,  but  the  most 
desperate  of  buccaneers,  who  being  declared  pirates  by 
law,  become  pirates  in  fact.  The  horrors  of  the  middle 
passage  are  necessarily  increased,  and  the  difficulties  of 

another  instance  of  the  object  of  legislation  defeated  by  its  own  vindic- 
tiveness.  The  bona  fide  purchaser  of  slaves,  in  a  slave  country,  who 
seeks  to  transport  them  to  another  slave  country,  is  not  a  pirate.  The 
kidnapper  of  free  negroes  might  be  properly  so  declared.  The  acts  are 
justified  upon  the  difficulty  of  making  proof  of  kidnapping,  &c.  This  is 
an  unfortunate  truth,  but  does  not  justify  the  severity  of  the  proposed 
remedy.  The  result  is,  that  convictions  under  the  act  are  very  rare. 


Clxviii  HISTORICAL  SKETCH   OF   SLAVERY. 

landing  the  cargoes  add  to  the  sufferings  of  the  slaves, 
already  more  than  decimated  hy  disease.1 

This  trade  is  not  carried  on  with  the  United  States. 
But  few  slaves  have  been  landed  on  their  coast  since  the 
trade  was  prohibited.  All  the  West  Indies  for  a  time, 
and  subsequently  the  Spanish  and  Portuguese  West 
Indies  and  Brazil,  furnished  the  markets  for  this  illicit 
trade.2  As  already  remarked,  the  policy  has  been  to 
buy  rather  than  to  breed  negroes.  And  so  long  as  slave 
labor  in  the  West  Indies  remains  so  profitable,  the  price 
of  slaves  will  continue  to  hold  out  inducements  to  law- 
less adventurers  to  violate  all  treaties  and  laws,  in  order 
to  reap  the  immense  profits  of  this  trade.  The  abolition 
of  slavery,  in  the  English,  French,  Danish,  Dutch,  and 
Swedish  West  Indies,  as  we  shall  directly '  show,  have 
only  increased  the  profits  of  slave  labor  in  the  Spanish 
and  Portuguese  colonies,  and  thus  increased  the  value  of 
slaves  and  the  temptation  for  the  trade. 

1  Mr.  Buxton  estimates  that  seven-tenths  of  the  captured  slaves  die  in 
the  process.     Thus,  of  1000  victims  of  the  trade, 

One-half  perish  in  the  seizure,  march,  and  detention  on 

the  coast,  .  .  .  .  >  .500 

One-fourth  of  those  embarked,  die  in  the  middle  passage,     125 
One-fifth  of  the  remainder  die  in  being  climatized,          .       75 

700 
Slave-Trade  and  Remedy,  199,  et  seq. 

2  See  Wilkes's  Exp.  Exp.  i,  pp.  36,  55,  88.     He  states  that  the  eastern 
coast  of  Africa  furnishes  most  of  the  slaves.     Zanzibar  is  a  great  slave- 
mart.     The  slaves  are  carried  across  the  Island  of  Madagascar,  to  be  sold 
on  the  eastern  coast  to  Europeans,  ix,  pp.  184, 190,  272,  273.     The  slaves 
in  the  captured  vessels  are  treated  but  little  better  by  the  English  than 
by  the  traders ;  i,  55,  88. 


CHAPTER  XI. 

ABOLITION   OF  NEGRO   SLAVERY   IN   THE   UNITED   STATES. 

As  the  first  efforts  for  the  prohibition  of  the  slave- 
trade  were  made  in  America,  so  the  first  movement  for 
the  abolition  of  negro  slavery  had  its  origin  there.  To 
trace  all  the  efforts  that  have  been  made,  their  origin  and 
end,  would  be  a  task  we  have  neither  time  nor  space  to 
enter  upon.  A  mere  glance  at  results  is  all  that  we  can 
do. 

The  American  Revolution  was  in  a  remarkable  de- 
gree a  struggle  for  political  liberty.  The  grievances  of 
the  Colonies,  though  existing  in  fact,  were  not  sufficiently 
aggravated  to  have  aroused  a  whole  people  to  throw  off 
the  government  of  their  fathers.  The  war  was  under- 
taken for  a  principle,  was  fought  upon  principle,  and 
the  success  of  their  arms  was  deemed  by  the  colonists 
as  the  triumph  of  the  principle.  That  principle  was  the 
right  of  a  people  to  the  enjoyment  of  political  liberty. 
But  the  investigation  and  assertion  of  this  right  by  a 
nation  for  a  series  of  years  necessarily  imbued  their 
minds  with  an  ardent  love  of  personal  liberty,  and 
hence,  the  very  declaration  of  their  political  liberty  an- 
nounced as  a  self-evident  truth,  that  all  men  were  created 
free  and  equal. 

This  announcement  was  not  a  formal  incorporation 
of  an  abstract  truth  into  a  diplomatic  paper.  It  was  the 
reflection  of  the  feelings  of  the  ardent  espousers  of  the 
cause.  It  was  the  natural  result  of  the  excited  state  of 
the  public  mind.  We  should  expect  to  find  such  a 
declaration  from  men  about  to  engage  in  such  a  struggle. 


HISTORICAL   SKETCH   OF   SLAVERY. 

And  knowing  as  we  do,  and  rejoicing  as  we  should,  in 
the  honesty  and  purity  of  their  motives,  we  should  ex- 
pect to  find  such  men  prosecuting  their  principles  to 
their  legitimate  results,  and  proclaiming  all  involuntary 
servitude  to  be  opposed  to  the  natural  rights  of  man. 
It  is  not  surprising,  then,  that  Franklin  should  have 
been  the  president  of  the  first  abolition  society  in  Penn- 
sylvania, as  early  as  1787 ;  nor  that  Henry,  and  Jefier- 
son,  and  Jay,  should  avow  their  hostility  to  the  system, 
and  their  hopes  for  its  overthrow ;  nor  that  even  the 
wise,  and  good,  and  great  Washington,  should,  by  his 
will  emancipating  his  own  slaves,  acknowledge  that  his 
own  mind  was  at  least  wavering  as  to  the  propriety  of 
their  bondage.  In  fact,  at  that  day,  Virginia  was  much 
more  earnest  in  the  wish  for  general  emancipation  than 
were  New  York,  Massachusetts,  or  Rhode  Island.  So 
general  was  the  feeling,  that  the  Ordinance  of  1787, 
which  excluded  slavery  from  the  Northwest  Territory 
(out  of  which  the  present  populous  and  thriving  North- 
western States  are  formed),  was  ratified  by  the  first  Con- 
gress of  the  United  States,  with  but  one  dissenting  voice, 
and  that  from  a  delegate  from  New  York ;  the  entire 
Southern  vote  being  cast  in  its  favor. 

Neither  the  climate  nor  the  productions  of  the  northern 
and  eastern  portions  of  the  United  States  are  adapted 
to  negro  slavery.  The  sun  is  as  necessary  to  negro  per- 
fection as  it  is  to  the  cotton  plant.  The  labor  of  the 
slave  is  only  valuable  where  that  labor  can  be  applied  to 
a  routine  of  business  which  requires  no  reflection  or 
judgment  upon  the  part  of  the  laborer,  and  which  con- 
tinues throughout  the  year.  Hence,  the  number  of 
slaves  in  these  older  and  more  flourishing  portions  of 
the  States,  by  the  census  of  1790,  amounted  only  to 
40,370,  while  the  southern  and  more  feeble  colonies 
(Virginia  excepted),  embraced  in  their  territory  567,527. 
It  required,  therefore,  no  sacrifice  of  interest  upon  the 


ABOLITION   OF   SLAVERY  IN   UNITED   STATES,      clxxi 

part  of  these  States,  to  provide  for  the  extinction  of 
slavery.  It  checked  not  their  growth ;  did  not  make  it 
necessary  for  them  to  seek  out  new  channels  for  labor 
and  the  acquisition  of  wealth ;  and  required  no  great 
sacrifice  of  property  at  their  hands.  Vermont  claims 
the  honor  of  having  first  excluded  slavery,  by  her  Bill 
of  Rights,  adopted  in  1777.  The  census  of  1790  shows 
but  seventeen  slaves  in  the  whole  State.  It  required  no 
great  measure  of  philanthropy  to  sacrifice  the  value  of 
seventeen  slaves. 

Massachusetts  never  did,  by  statute,  abolish  slavery  ; 
and  as  late  as  1833,  her  Supreme  Court  left  it  an  open 
question,  when  slavery  was  abolished  in  that  State.1 
Certain  it  is,  that  the  census  of  1790  gives  no  enumera- 
tion of  slaves  in  that  State. 

The  statute-book  of  New  Hampshire  also  seems  to 
be  silent  upon  this  subject,  and  the  census  of  1790  gives 
to  this  State  158  slaves ;  one  of  these  was  still  reported 
in  1840. 

Rhode  Island  adopted  a  plan  of  gradual  emancipation 
by  declaring  that  all  blacks  born  in  that  State  after 
March,  1784,  should  be  free.  Five  of  the  old  stock  seems 
to  have  survived  to  have  their  names  registered  in  the 
census  of  1840. 

Connecticut  adopted  a  similar  plan  of  emancipation, 
and  seventeen  of  her  slaves,  it  seems  by  the  census,  were 
surviving  in  1840.  Connecticut  held  2759  slaves  in 
1790.  The  interest  was  too  great  for  immediate  eman- 
cipation. 

Pennsylvania  was  in  the  same  situation,  having  3737 
slaves  in  1790.  This  State  also  provided  for  gradual 
emancipation,  by  an  act  passed  in  1780,  by  which  it 
was  provided,  that  all  slaves  born  after  that  time  should 
serve  as  slaves  until  they  reached  the  age  of  twenty- 

1  Commonwealth  v.  Aves,  Pick.  209. 


Clxxii  HISTORICAL  SKETCH   OF   SLAVERY. 

eight,  after  which  time  they  were  free.     The  census  of 
1840  shows  sixty-four  still  in  slavery.1 

In  New  York  a  similar  act  was  passed  in  1799,  eman- 
cipating the  future  issue  of  slaves,  males  at  the  age  of 
twenty-eight,  females  twenty-five  years.  In  1817,  an- 
other act  was  passed,  declaring  all  slaves  free  on  the 
4th  July,  1827.  In  1790,  there  were  21,324  slaves  in 
this  State.  In  1800  (before  the  emancipating  act  could 
take  effect),  there  were  only  20,343.  In  1840,  four  only 
remained. 

New  Jersey,  in  1790,  held  11,423  slaves.  In  1804, 
the  prospective  extinction  of  slavery  was  provided  for 
by  a  similar  statute  to  those  of  New  York  and  Pennsyl- 
vania. The  process,  however,  must  have  been  slower, 
as  the  census  of  1840  gives  her  674  slaves,  and  that  of 
1850,  236. 

Notwithstanding  the  ardent  temperament  of  the 
Southern  people,  and  their  early  zealous  advocacy  of 
universal  liberty,  practical  emancipation  with  them  was 
a  much  more  momentous  question.  Virginia  alone  in 
1790  contained  293,427  slaves,  more  than  seven  times 
as  many  as  all  the  foregoing  States  combined.  Her  pro- 
ductions were  almost  exclusively  the  result  of  slave 
labor.  Her  white  population  exceeded  her  slaves  only 
about  twenty-five  per  cent.  Her  soil  and  climate  and  (in 
a  much  greater  degree),  those  of  the  more  Southern 
States,  were  not  only  peculiarly  fitted  for  negro  labor, 
but  almost  excluded  white  labor  from  agricultural  pur- 
suits. The  problem  was  one  of  no  easy  solution,  how 
this  "  great  evil,"  as  it  was  then  called,  was  to  be  re- 
moved with  safety  to  the  master  and  benefit  to  the 
slave.  It  would  have  doubtless  remained  a  problem 
perplexing  the  thoughts  and  paining  the  hearts  of  the 

1  A  negro  woman  slave  was  sold  by  the  sheriff,  in  Fayette  County, 
Pennsylvania,  to  pay  debts,  in  the  year  1823.  Lynch  v.  The  Common- 
wealth, 6  Watts,  495. 


ABOLITION    OF   SLAVERY   IN   UNITED    STATES. 

good  and  wise  to  this  day,  had  not  the  Northern  and 
foreign  fanaticism  forced  upon  the  South  an  investiga- 
tion back  of  the  stand-point  which  was  then  occupied, 
and  with  it  the  conviction  that  the  Omnipotent  Ruler  of 
the  universe  has  not  permitted  this  "  great  evil"  to  accu- 
mulate until  it  is  beyond  control,  but  has  exhibited  in 
this,  as  in  all  his  dealings  with  man,  that  overruling 
wisdom  and  providence  which  causes  man's  wrath  to 
praise  Him. 


CHAPTEK  XII. 

ABOLITION  OF   SLAVERY  IN   HAYTI,   OR   ST.   DOMINGO. 

WE  will  refer  hereafter  to  tlie  subsequent  history  of 
the  abolition  struggle  in  the  United  States.  We  turn 
now  to  the  West  Indies,  to  trace  hurriedly  the  progress 
of  emancipation  there. 

Prominent  among  them  stands  Hayti,  or  St.  Domingo. 
Originally  belonging  to  Spain,  by  gradual  encroach- 
ment it  became  partially  under  the  French  dominion, 
until,  in  1789,  the  latter  nation  owned  about  one-third 
of  the  island.  Voluntary  manumission,  granted  gene- 
rally to  the  half-breed  or  mulattoes,  the  fruit  of  the 
illicit  intercourse  of  the  whites  with  the  slaves,  had,  at 
the  time  of  the  French  Revolution,  placed  in  the  French 
portion  of  the  island  a  population  of  21,808.  At  that 
time  the  whites  numbered  only  27,717,  while  the  slaves 
amounted  to  405,564.'  The  cry  of  "  Liberty  and  Equa- 
lity" of  the  French  metropolis  was  taken  up  and  echoed 
by  the  whites  of  Domingo,  especially  the  poorer  classes, 
who  looked  with  envy  and  hatred  upon  the  immense 
estates  of  the  landed  proprietors.  The  free  mulattoes 
also  (many  of  whom  were  possessed  of  slaves  and  other 
property),  rejoiced  in  the  cry,  for  though  free  they  had 
never  been  admitted  to  any  political  privileges,  and  the 
"  prejudice  of  color"  existed  to  a  remarkable  degree, 

1  These  are  the  estimates  of  M.  Barbe-Marbois,  in  1788.  See  Rees's 
Cyclopeedia,  Domingo.  Others  estimate  the  slaves  at  700,000.  Schoel- 
cher,  Colonies  Etrangeres,  torn,  ii,  p.  86. 


ABOLITION   OF   SLAVERY   IN   HATTI. 

where  nothing  but  color  and  these  political  privileges 
distinguished  the  one  class  from  the  other. 

The  first  outburst  of  the  French  Revolution  found 
three  distinct  parties  in  Domingo  :  the  wealthy  landed 
proprietors,  who  were  averse  to  change,  and  desired  at 
least  to  act  in  subordination  to  the  Government  of  the 
metropolis ;  Les  Blancs,  or  the  white  Republicans, 
who  desired  to  set  up  an  independent  government  in 
the  island ;  and  the  mulattoes,  who  were  clamorous  for 
equality,  whatever  might  be  the  extent  of  the  privileges 
gained.  The  first  dissension  arose  between  the  two 
former  classes,  and  so  great  was  the  prejudice  of  color, 
that  neither  would  accept  of  the  aid  of  the  mulattoes 
unless  they  would  wear  a  badge,  of  a  color  different 
from  the  whites.1  The  latter  petitioned  the  National 
Assembly  for  a  recognition  of  their  rights,  and  the  reply 
was,  that  "  no  part  of  the  nation  should  appeal  in  vain 
for  its  rights  before  the  assembled  representatives  of  the 
French  people,"9  and  on  the  8th  March,  1790,  a  decree 
was  passed,  granting  political  privileges  to  all  free  per- 
sons of  the  age  of  twenty-five  years,  and  who  were  pro- 
prietors of  land.  Both  factions  of  the  whites  combined 
to  defeat  this  decree,  and  succeeded  in  inducing  the 
Governor  of  the  island  to  construe  it  as  applying  only 
to  white  persons.  The  fraud  was  subsequently  dis- 
covered by  a  young  mulatto,  Vincent  Oge',  while  in 
France,  and  upon  his  return  home  he  assembled  eighty 
or  ninety  of  his  class,  and  boldly  demanded  the  execu- 
tion of  the  decree.  He  was  routed  by  the  chief  of  the 
National  Guard,  and  he  and  his  followers  taken  prisoners 
and  executed.  But  the  "  prejudice  of  color"  would  not 
allow  the  scaffold  to  be  erected  where  the  whites  were 
usually  executed.3 

In  the  meantime  each  party  of  the  whites  were  at- 

1  Schcelcher,  Colonies  Etrangeres,  torn,  ii,  95.  2  Ibid.  p.  91. 

*  Schrelcher,  torn,  ii,  pp  95,  96. 


HISTORICAL   SKETCH   OF   SLAVERY. 

tempting  to  set  up  a  government.  The  Governor, 
Peynier,  at  St.  Domingo,  represented  the  metropolitan 
party.  The  Assembly  of  the  Reformers  was  held  at  St. 
Mark. 

Pending  these  difficulties,  the  slaves  in  the  north 
began  to  talk  of  liberty.1  The  24th  of  August,  1791, 
witnessed  a  formidable  insurrection  among  them.  They 
carried  fire  and  devastation  in  their  route.  The  National 
Guard,  however,  soon  dispersed  them,  and  the  head  of 
their  leader,  Boakmann,  was  placed  on  a  pike  in  the 
midst  of  the  public  square.  The  punishment  inflicted 
by  the  whites  was  excessive.  They  confined  it  not  to 
those  engaged  in  the  revolt,  but  considering  every  black 
an  enemy,  massacred  without  distinction  all  that  fell  in 
their  way.8  In  this  insurrection  it  is  supposed  that  two 
thousand  white  persons  perished  ;  twelve  hundred  fami- 
lies were  reduced  to  indigence  ;  one  hundred  and  eighty 
sugar  and  nine  hundred  cotton  plantations  destroyed, 
and  the  buildings  consumed  by  fire.3 

About  this  time,  there  reached  the  island  the  decree 
of  the  National  Assembly  of  the  15th  May,  1791,  which, 
in  plain  terms,  granted  equal  political  privileges  to  all 
freemen  born  of  free  parents,  without  regard  to  color. 
The  whites  resolved  that  they  would  not  submit  to  its 
provisions;  the  mulattoes  to  obtain,  by  force,  their 
legal  rights.  Each  party  armed  themselves,  and  each 
party  armed  also  a  body  of  their  faithful  slaves,  to  do 

1  Insurrectionary  pamphlets  had  been  previously  distributed  among 
them,  issued  by  the  abolitionists  of  Paris  (Amis  des  Noirs),  who  counted 
among  their  numbers,  Mirabeau,  Robespierre,  Abb6  Gr<jgoire,  and  other 
leaders  of  the  Revolution.     See  Speech  of  the   Deputies,  before  the 
National  Assembly,  Nov.  3d,  1791,  in  which  the  insurrection  is  attri- 
buted entirely  to  this  cause. 

2  See  Schcelcher,  pp.  99-101.      Some  palliation  for  this  is  found  in 
the  barbarous  cruelty  of  the  revolting  negroes.     Their  standard  was  the 
body  of  a  white  child,  elevated  on  a  pole.     Their  murders  and  rapes 
were  brutal  in  the  extreme.     See  Speech  of  Deputies,  as  above. 

*  Rees's  Cyclopaedia,  Domingo. 


ABOLITION   OF    SLAVERY   IN   HAYTI.  clxXVli 

battle  for  them.  On  the  2d  September,  an  engagement 
was  had  near  Port  au  Prince,  in  which  the  mulattoes 
obtained  the  advantage.  On  23d  October,  a  treaty  of 
peace  was  signed,  acknowledging  the  political  equality 
of  the  mulattoes.  Their  armed  slaves,  however,  were 
banished  from  the  island  and  sold  in  Jamaica.  They 
were  driven  thence  by  the  English  governor,  who  sent 
them  back  to  St.  Domingo,  where  they  were  executed, 
and  their  bodies  cast  into  the  bay.1  This  peace  was  of 
short  duration,  as  the  Provincial  Assembly  declared 
the  treaty  to  be  subversive  of  the  colonial  system. 
The  whites,  being  in  open  violation  of  the  decree  of  the 
Home  Government,  proposed  to  deliver  the  island  to 
the  English  Governor  of  Jamaica,  which  proposal  he 
declined  to  accept. 

In  the  meantime,  the  National  Assembly,  by  the 
fickleness  of  their  policy,  only  aggravated  the  state  of 
anarchy  in  the  island.  By  a  decree  of  the  24th  Sep- 
tember, that  of  the  15th  May  was  annulled,  and  power 
was  given  to  the  Colonial  Assembly  to  regulate  the 
political  status  of  the  free  persons  of  color.  This  they 
exercised  on  2d  November,  by  postponing  indefinitely 
their  political  emancipation. 

Hostilities  soon  recommenced,  and  on  29th  November 
one-half  of  Port  au  Prince  was  reduced  to  ashes.  The 
whites  accused  the  mulattoes  of  the  deed,  and  to  avenge 
themselves  massacred  indiscriminately  their  women  and 
children  who  were  within  their  reach.3  With  varying 
success,  this  civil  war  continued  until  the  Governor, 
Blanchelande,  joined  his  forces  to  the  mulattoes,  and 
thus  subdued  the  whites.  This  step  of  his  was  in  con- 
sequence of  another  decree  of  the  vacillating  National 
Assembly,  who,  on  the  4th  April,  1792,  revoked  the 
decree  of  24th  September,  and  declared  all  freemen  to 
be  equal.  To  enforce  this  decree,  they  sent  out  three 

1  Schcelcher,  102,  103.  2  Pamphile  La  Croix,  torn,  i,  ch.  4. 

L 


HISTORICAL    SKETCH    OF   SLAVERY. 

commissioners,  Sonthonax,  Polverel,  and  Alliand,  and 
six  thousand  troops.  These  commissioners  took  part 
with  the  colored  men,  and  heaped  upon  them  honors 
and  arms.  For  a  time  peace  seemed  to  have  been  esta- 
blished, but  the  equality  of  the  mulattoes  was  too  gall- 
ing for  the  whites,  and  they  again  endeavored  to  right 
themselves  by  an  appeal  to  arms.  Fortifying  themselves 
in  Port  au  Prince,  they  again  offered  to  deliver  the 
island  to  the  English,  if  they  would  re-establish  the  an- 
cient order  of  things.1 

After  considerable  skirmishing,  this  rebellion  was  re- 
pressed, and  peace  seemed  again  to  be  restored ;  but 
mutual  hatred  was  still  rankling  in  the  bosoms  of  both 
classes,  and  an  opportunity  soon  offered  for  the  recom- 
mencement of  hostilities.  A  difficulty  between  a  mu- 
latto and  an  officer  of  marine  was  sufficient,  and  the 
battle  was  fought  in  the  streets  of  Port  au  Prince.  In 
the  meUe,  a  parcel  of  revolted  negroes  placed  fire  to  the 
jail,  to  release  four  or  five  hundred  negro  prisoners.  The 
flames  spread,  and  reduced  to  ashes  the  most  beautiful 
city  of  the  Antilles.  The  government  troops  and  the 
mulattoes  again  triumphed  over  the  whites,  and  one 
thousand  of  the  latter,  the  flower  of  the  island,  con- 
demned themselves  to  voluntary  exile. 

In  the  meantime,  Spain  had  declared  war  against  the 
French  Republic.  The  close  proximity  of  their  posses- 
sions in  Domingo,  gave  the  Spaniards  a  fine  opportunity 
of  harassing  the  already  distracted  French  colony.  The 
slaves  of  the  latter  were  encouraged  to  take  refuge 
among  the  Spaniards,  and  many  of  them  were  enrolled 
in  their  army,  under  the  lead  of  two  of  their  fellows, 
Jean  Frangois  and  Biasson.  Under  these  generals,  con- 
tinued attacks  were  made  upon  the  French  province. 
About  August,  1793,  a  desperate  attack  was  made  by 
them.  They  were  about  to  take  possession  ot  Fort 

1  See  Schceleher,  105,  et  seq.,  and  authorities  cited  by  him. 


ABOLITION    OF    SLAVERY   IN   HAYTI. 

Liberty,  and  menaced  even  the  town  of  the  Cape.  Son- 
thonax occupied  it  alone,  with  about  one  thousand 
troops,  and  five  or  six  hundred  mulattoes,  and  without 
the  munitions  of  war.  Moreover,  the  rebellious  whites 
had  called  upon  the  English  of  Jamaica  to  come  to 
their  assistance,  and  they  themselves  occupied  much  of 
the  country.  Under  these  circumstances,  Sonthonax 
proclaimed,  on  29th  August,  liberty  to  all  slaves  who 
would  enrol  themselves  under  the  banner  of  the  Re- 
public. His  colleague,  Polverel,  condemned  this  act  as 
an  abuse,  or  rather  a  stretch  of  power.  But  when  the 
English  at  length  came  to  take  part  with  the  rebels,  he 
admitted  the  necessity  of  the  act,  and  obtained  the  con- 
sent of  the  proprietors  thereto.  Malenfant,  who  gives 
this  account,  adds,  that  he  himself  was  the  only  proprietor 
who  refused  to  subscribe  to  this  consent.1  This  was  the 
formal  beginning  of  the  emancipation  of  the  blacks  of 
Domingo. 

On  3d  September,  1793,  a  treaty  was  signed  by  the 
English  and  the  colonists  in  Jamaica.  On  19th  Septem- 
ber, the  British  soldiers,  eight  hundred  and  seventy  in 
number,  were  introduced  into  one  of  the  towns  where 
the  rebels  were  in  power,  and  five  others  were  succes- 
sively delivered  up  to  them.  On  4th  June,  1794,  Port 
au  Prince  surrendered  to  the  British  arms.  But  the 
fatal  black  vomit  appeared  among  the  troops,  and  forty  of 
the  officers  and  six  hundred  of  the  rank  and  file  fell  vic- 
tims to  the  scourge.2 

On  4th  February,  1794,  the  National  Convention  not 
only  confirmed  the  offer  of  liberty  made  by  Sonthonax, 
but  by  decree  abolished  slavery  in  all  of  the  French 
colonies.  To  maintain  some  kind  of  order,  Polverel, 
one  of  the  commissioners,  in  May,  1794,  published  agri- 
cultural regulations,  by  which  the  enfranchised  slaves 

1  See  Schcelcher,  torn,  ii,  p.  114. 

2  Schcelcher,  ii,  115  et  seq. ;  Rees's  Cyclop.  Domingo. 


clx'XX  HISTORICAL   SKETCH    OF    SLAVERY. 

were  to  have  one-fourth  of  the  gross  products  of  their 
labor.  This  arrangement  for  a  time  seemed  to  be  satis- 
factory. 

Previous  to  this  time  there  appeared  upon  the  stage 
the  most  remarkable  person  in  this  eventful  drama.  A 
negro  of  middle  age,  the  coachman  of  a  rich  planter, 
fled  from  his  master  and  took  refuge  with  the  Spaniards. 
Having  learned  to  read  and  write,  and  knowing  some- 
thing of  simple  medicines,  he  was  placed  under  Biasson, 
the  negro  General,  and  honored  with  the  titles  of  Sur- 
geon and  Colonel.  He  continued  to  serve  in  the  Spanish 
army  until  the  news  arrived  of  the  decree  of  February 
4th,  1794,  when  he  immediately  deserted.  The  time 
was  propitious.  The  French  General  Lavaux  had  been 
appointed  Governor  ad  interim,  while  the  commissioners 
went  to  Paris  to  answer  charges  made  against  them  by 
the  colonists.  The  troops  had  been  left  under  the  direc- 
tions of  three  mulatto  officers,  Beauvais,  at  Jacmel ; 
Eigaud,  at  Cayes;  and  Villatte,  at  the  Cape.  The 
Governor,  Lavaux,  made  the  latter  his  headquarters  and 
took  command.  Villatte,  dissatisfied  with  being  in  a 
subordinate  position,  fomented  a  sedition,  and  placed 
the  Governor  in  prison,  under  the  pretence  of  saving 
him  from  the  fury  of  the  populace.  In  this  conduct  he 
was  but  following  the  example  of  Montbrun,  another 
mulatto,  who  a  short  time  previously  had  forced  Sontho- 
nax  to  fly  from  Port  au  Prince.  Toussaint,  the  negro 
alluded  to,  placing  himself  at  the  head  of  five  thousand 
men,  marched  upon  the  Cape,  defeated  Villatte,  released 
the  Governor,  and  placed  himself  subject  to  his  orders. 
It  must  be  remarked  in  passing,  that  there  was  no  more 
sympathy  between  the  blacks  and  mulattoes,  than  be- 
tween them  and  the  whites,  for  the  mixed  race  were 
equally  as  averse  to  an  equality  with  the  negro  as  the 
whites.  Lavaux,  from  gratitude,  nominated  Toussaint 
general-of-brigade,  and  placed  him  at  the  head  of  his 


ABOLITION   OF    SLAVERY   IN   HATTI. 

administration.  In  his  zeal  lie  pronounced  him  "  the 
liberator  of  the  blacks." 

The  knowledge  which  Toussaint  had  of  the  country, 
and  especially  of  the  situation  of  his  old  protectors,  the 
Spaniards,  enabled  him  very  soon  to  drive  them  out 
from  the  French  possessions.  The  enfeebled  condition 
of  the  English  forces  gave  him  a  good  opportunity  of 
at  least  holding  them  from  any  aggressive  movements. 
At  the  same  time  he  forced  the  blacks  to  enrol  them- 
selves in  the  army,  or  else  return  to  their  work  upon  the 
plan  of  Polverel,  before  alluded  to.  The  commissioner, 
Sonthonax,  upon  his  return  to  the  island,  appointed 
him  general-of-division. 

About  this  time  Kigaud,  another  of  the  mulatto 
generals,  placed  himself  in  an  attitude  of  independence 
in  the  South.  He  oppressed  indiscriminately  both 
blacks  and  whites,  and  his  command,  almost  exclusively 
mulattoes,  sustained  him  in  his  position.  The  govern- 
ment was  too  feeble  to  resist  him,  and  Toussaint  had  no 
disposition  to  aid  them  in  it,  for  the  design  had  already 
formed  itself  in  his  breast  of  setting  aside  this  exhausted 
government  and  taking  possession  of  the  island  for  the 
colored  race  exclusively.  The  commissioner  soon  pene- 
trated this  design,  and  hastened  to  return  to  France  to 
make  it  known.  Toussaint,  suspecting  his  intention, 
sent  with  him  two  of  his  sons  as  hostages  for  his  devo- 
tion to  the  Republic. 

After  his  departure  Toussaint  drove  the  English  from 
Port  au  Prince,  Jeremy,  and  the  Mole.  They  sought 
in  vain  to  bribe  him  to  deliver  the  island  to  them.  His 
scheme  was  independence.  Failing  in  this  last  resort, 
the  English  finally  evacuated  the  island,  where  disease 
and  defeat  had  added  nothing  to  the  glory  of  their 
arms. 

Both  Toussaint  and  Rigaud  endeavored  to  force  the 
negroes  to  continue  their  work.  They  were  required  to 
remain  upon  the  farms  and  not  to  leave  them  without 


HISTORICAL   SKETCH    OF    SLAVERY. 

permits.  Notwithstanding,  many  of  them  fled  and  be- 
came highway  robbers.  Rigaud  erected  a  prison  in 
which  he  incarcerated  all  such. 

The  French  Directory  sent  out  General  Hedonville, 
as  their  agent,  to  supervise  Toussaint  and  to  arrest 
Rigaud.  He  arrived  21st  April,  1798.  Toussaint  re- 
fused to  aid  in  the  arrest  of  Rigaud,  pleading  as  an  ex- 
cuse his  great  services  to  the  Republic.  At  the  same 
time  he  proposed  to  Rigaud  to  combine  against  Hedon- 
ville and  declare  the  island  independent.  The  prejudice 
of  color,  however,  extended  even  to  the  mulattoes,  and 
a  combination  with  the  negroes  was  repugnant  to  their 
feelings.  Rigaud  rejected  these  overtures  and  preferred 
to  combine  with  Hedonville  against  the  blacks. 

This  combination  was  an  expiation  for  his  offences, 
and  when  Hedonville,  in  October  following,  was  forced 
to  leave  the  island,  he  released  Rigaud  from  all  obli- 
gation to  obey  the  general-of-division,  and  appointed 
him  commander-in-chief  of  the  army  in  the  South. 
Thus  commenced  the  war  between  the  blacks  and 
mulattoes.  The  whites  were  already  virtually  driven 
from  the  island.  The  contest  for  the  mastery  was  now 
between  the  other  colors.  The  mulattoes  in  Toussaint's 
army  deserted  and  joined  their  own  color.  A  bitter  and 
bloody  contest  ensued.  But  the  blacks  were  too  nume- 
rous for  the  small  band  of  mulattoes.  After  several 
desperate  conflicts,  on  29th  July,  1800,  Rigaud,  Petion, 
Boyer,  and  their  followers,  abandoned  the  island  and 
left  the  old  negro  Toussaint  sole  master  thereof. 

The  Consular  Government  confirmed  Toussaint  in  his 
plenary  powers,  and  ordered  him  to  take  possession  of 
the  Spanish  portion  of  the  island  ceded  to  the  French 
by  the  Treaty  of  Basle  in  1795,  which  order  he  executed 
with  but  little  opposition. 

In  June,  1801,  Toussaint  called  together  such  of  the 
white  inhabitants  as  were  subject  to  his  will,  under  the 


ABOLITION    OF    SLAVERY    IN    HAYTI. 

name  of  the  Central  Assembly  of  St.  Domingo,  and 
published  a  constitution  by  which  slavery  was  forever 
abolished  in  the  island,  and  he  was  nominated  as  governor 
for  life.  This  constitution  he  formally  presented  to  the 
French  government  for  their  sanction ;  but,  at  the  same 
time,  made  every  preparation  to  maintain  it  by  force. 
He  endeavored,  also,  to  reconstruct  the  social  condition  of 
the  island ;  opened  a  court  around  himself;  encouraged 
luxury  in  his  favorites  ;  and  sought,  by  rigorous  decrees, 
to  enforce  upon  the  agricultural  slaves,  a  continuance  of 
their  labors.  Idleness  in  them  was  punished  by  death. 
In  short,  he  established  an  iron  despotism  that  knew  no 
law  but  his  will.  In  this  manner  he  alienated  from 
himself  the  affections  of  those  whose  gratitude  for  his 
services  would  have  bound  them  to  him. 

In  1801  was  signed  the  Peace  of  Amiens.  The  First 
Consul  of  France  had  time  now  to  turn  his  attention  to 
her  colonies.  He  reviewed  the  scenes  in  St.  Domingo, 
and  his  great  intellect  soon  detected  the  fatal  mistake 
which  the  National  Assembly  had  made.  That  mistake 
was,  in  seeking  to  make  equal  those  whom  the  Almighty 
had  made  unequal.  The  white  colonists,  who  had  fled 
to  Paris,  urged  him  to  restore  the  former  order  of  things. 
His  wife,  Josephine,  herself  a  West  India  Creole,  doubt- 
less as  an  eyewitness,  gave  him  a  true  picture  of  the 
condition  and  capacity  of  the  negro.  He  resolved  to 
restore  the  old  regime.  Le  Clerc,  his  brother-in-law, 
with  23,000  troops,  embarked;  and  on  5th  February, 
1802,  appeared  at  the  Cape.  He  demanded  possession 
of  the  city  of  the  negro  commandant,  Christophe.  He 
refused ;  and  following  the  instructions  formerly  given 
him  by  Toussaint,  reduced  the  town  to  ashes.  Leogane, 
Port  de  Paix,  and  Saint  Marc,  shared  the  same  fate  at 
the  hands  of  their  commandants.  Other  cities  were  de- 
livered into  the  hands  of  the  French  general. 

Le  Clerc  endeavored  to  induce  Toussaint  to  acquiesce 


clxXXlV  HISTORICAL   SKETCH   OF   SLAVERY. 

in  the  views  of  the  First  Consul,  and  with  this  view, 
sent  his  two  sons  (formerly  sent  to  France  as  hostages) 
to  persuade  him  to  this  course.  But  the  old  negro's 
ambition  could  not  be  thus  restrained.  Several  engage- 
ments were  had.  In  the  attempt  to  take  a  fort  called 
Crete-a-Pierrot,  the  French  suffered  considerably.  Le 
Clerc  changed  his  tactics,  and  published  that  there  was 
no  intention,  on  the  part  of  the  First  Consul,  to  enslave 
the  negroes ;  that  they  should  continue  to  enjoy  their 
liberty.  The  despotic  conduct  of  Toussaint  was  now 
avenged.  All  of  his  officers,  with  but  few  exceptions, 
accepted  of  this  overture,  and  yielded  to  the  terms  of 
the  French  General.  Toussaint  was  forced  at  last  to 
treat.  He  made  two  conditions :  the  liberty  of  his  fellow- 
citizens,  and  that  he  should  retire  to  his  own  estate,  re- 
taining his  title  as  General,  and  his  staff.  Being  subse- 
quently detected  in  a  conspiracy  (as  it  was  alleged) 
against  the  government,  he  was  arrested  and  sent  to 
Paris.  He  was  there  cast  into  prison,  and  soon  ended 
his  life  in  a  dungeon.1 

After  the  departure  of  Toussaint,  Le  Clerc  disarmed 
many  of  the  negro  and  mulatto  soldiers,  removed  their 
officers,  put  to  death  several,  under  various  accusations, 
and  then,  throwing  off  the  mask,  announced  the  Con- 
sular decree  restoring  slavery.  Dessalines,  and  others 
of  the  old  negro  officers,  deserted,  and  raised  the  standard 
of  revolt.  The  mulattoes  and  negroes  now  cordially 
united  against  the  whites,  their  common  foe.  They  had 
enjoyed  their  liberty  too  long  to  submit  quietly  to  a  re- 
enslavement.  Thus  commenced  the  bloody  war  between 

1  In  giving  this  brief  account  of  this  remarkable  negro,  I  have  followed 
chiefly  M.  Schcelcher,  a  French  abolitionist.  There  is  great  conflict 
among  authors  in  respect  to  him.  Some  laud  him  as  the  model  upon 
which  Napoleon  endeavored  to  improve ;  others  treat  him  as  a  traitor 
and  weak  tool  in  the  hands  of  others.  I  have  taken  the  middle,  and  I 
believe  the  true  ground. 


ABOLITION   OF   SLAVERY   IN    HAYTI.  clxXXV 

the  whites  and  the  colored  races.  The  yellow  fever,  the 
negro's  ally,  came  to  their  assistance.  The  French  army 
were  decimated  in  numbers,  and  the  remainder  enfeebled 
by  disease.  Le  Clcrc  himself  fell  a  victim  to  the  vomito. 

The  war  was  bloody  and  desperate ;  no  quarter  was 
given  on  either  side.  The  negroes  devastated  the  coun- 
try, destroying  the  crops,  and  even  cutting  down  the 
trees.  Famine  then  came  to  add  to  the  difficulties  of 
the  French.  Great  Britain  having  declared  war  against 
the  Consular  government,  neutral  nations  could  furnish 
provisions  only  by  stealth. 

Eochambeau,  the  successor  to  Le  Clerc,  was  an  unfor- 
tunate appointment.  Cruel  and  despotic,  he  exercised 
his  unlimited  power  so  as  to  drive  from  the  French  all 
sympathy.  In  fact,  his  exactions  upon  the  French  them- 
selves made  them  his  enemies.  Besieged  and  confined 
in  the  Cape,  he  exacted  from  the  inhabitants  enormous 
taxes,  to  pay  for  provisions  introduced  by  American  ves- 
sels. A  merchant,  who  refused  to  pay  33,000  francs, 
was  shot  down  in  the  national  palace. 

Dessalines  finally  carried  on  his  siege  so  successfully, 
that  the  French  General  was  forced  to  capitulate.  He 
and  his  soldiers  were  permitted  to  embark,  and  thus 
evacuate  the  island,  with  the  exception  of  a  small  garri- 
son in  St.  Domingo,  under  General  Ferrand.  These 
bravely  maintained  themselves  until  they  were  expelled 
in  1809.  The  treaty  of  Paris,  in  1814,  re-ceded  that  por- 
tion of  the  island  to  Spain. 

On  1st  January,  1804,  the  officers  of  the  army  met  in 
convention  and  declared  the  independence  of  Hayti  (re- 
suming the  aboriginal  name).  At  this  time,  the  civil 
wars  had  reduced  the  population  to  about  400,000. 
Dessalines  was  declared  Governor-general,  and  signalized 
his  entry  into  office  by  a  proclamation  written  in  blood, 
justifying  and  ordering  the  massacre  of  the  whites  re- 
maining in  their  midst. 


CIXXXVI  HISTORICAL   SKETCH    OF    SLAVERY. 

On  8th  October,  1804,  Dessalines  was  declared  empe- 
ror. He  ruled  with  a  rod  of  iron.  His  hatred  of  the 
whites  was  intense.  In  May,  1805,  a  constitution  was 
published,  by  which  a  white  man  was  prohibited  from 
emigrating  thither  to  purchase  land  or  acquire  any  other 
property.  In  1806,  Pdtion,  a  mulatto  general,  headed  a 
conspiracy  against  him,  and  caused  him  to  be  assassi- 
nated. 

The  war  of  races  again  commenced  between  the  mu- 
lattoes  and  blacks  ;  Pdtion  heading  the  former,  and 
having  control  of  the  South  and  West ;  Christophe,  a 
black,  controlling  the  North.  The  latter  was  nominated 
President  of  the  Republic  by  the  Assembly  at  Port  au 
Prince,  on  27th  December,  1806.  On  9th  January,  1807, 
he  was  deposed  by  the  same  Assembly,  and  Petion 
named  in  his  stead.  Hence  the  claim  of  each. 

Petion  continued,  in  name,  President  of  the  Republic. 
Christophe  soon  had  himself  declared  King,  under  the 
name  of  Henry  I.  He  established  a  court,  and  granted 
vast  numbers  of  titles  and  orders  of  nobility,  and  of  the 
grand  cross.  He  maintained,  essentially,  a  military 
government.  He  compelled  the  laborers  to  continue  at 
their  posts  with  an  iron  arm ;  and  required  his  soldiers 
to  furnish  their  own  equipments,  under  pain  of  death. 
Two  of  his  mulatto  officers  having  deserted  at  St.  Marc, 
he  butchered,  in  cold  blood,  every  mulatto  man,  woman, 
and  child,  in  the  city. 

A  deliverer  appeared  about  the  year  1820,  in  a  negro, 
Richard,  Duke  of  Marmelade,  who  led  a  conspiracy  of 
the  principal  officers  of  the  army,  and  delivered  the 
North  to  Boyer,  then  President  of  the  South.  The  two 
sons  of  the  King  were  massacred,  after  he  himself  com- 
mitted suicide. 

Petion  took  a  different  course.  He  encouraged  idle- 
ness. He  was  faithless  to  the  constitution  under  which 
he  was  elected,  and  dispersed  the  Senate,  who  sought  to 


ABOLITION    OF    SLAVERY    IN    HAYTI. 

limit  his  powers.  He  put  to  death  many  of  the  senators, 
and  alienated  all  of  his  friends.  About  1810,  Rigaud 
returned  from  France,  and  assuming  the  title  of  Re- 
storer of  Liberty,  headed  an  army  in  the  South  to  put 
down  Pe'tion.  They  met,  and  agreed  to  hold  separate 
dominions ;  a  small  part  of  the  island  being  set  apart  for 
Rigaud,  as  General-in-chief  of  the  South.  He  died 
suddenly,  shortly  thereafter,  and  a  mulatto,  General 
Borghella,  was  named  as  his  successor.  On  the  approach 
of  Pe'tion  he  surrendered.  In  1816,  Pe'tion  was  nomi- 
nated President  for  life ;  and  on  29th  March,  1818,  he 
died,  having,  during  his  long  exercise  of  power,  done  no 
act  to  entitle  him  to  a  higher  commendation  than  that 
he  was  an  ambitious  sluggard.  Boyer,  a  French  mu- 
latto, who  accompanied  Le  Clerc,  was  elected  President 
in  his  stead. 

We  have  seen  how  he  was  indebted  to  Richard  for 
the  possession  of  the  North.  Upon  a  false  charge  of 
conspiracy  he  caused  him  to  be  shot,  on  28th  February, 
1821.  Five  or  six  others  of  the  most  prominent  of  his 
subjects  shared  a  similar  fate. 

About  this  date,  the  Spanish  colony  of  Domingo  re- 
volted from  the  mother  country  and  set  up  an  indepen- 
dent republic.  This  fell  an  early  prey  to  Boyer,  who 
thus  became  master  of  the  whole  island.  * 

Upon  the  restoration  of  the  Bourbons,  negotiations 
were  opened,  and  efforts  made  to  restore  this  most  prized 
colony  to  the  French  throne.  It  would  be  tedious  to 
pursue  the  details.  In  April,  1827,  Charles  X  sent  his 
last  propositions,  and  accompanied  them  with  a  fleet  of 
thirty  sail.  Boyer,  intimidated  by  the  fleet,  accepted 
of  the  terms  proposed.  By  these,  the  independence  of 
Hayti  was  acknowledged  upon  the  payment  of  an  in- 
demnity of  150,000,000  francs.  Thus  was  effected  the 
first  great  effort  of  liberating  the  slaves  of  the  West  In- 
dies.1 We  will  consider  its  consequences  hereafter. 

1  Colonies  Frangaises,  par  M.  Schoelcher. 


CHAPTER  XIII. 

ABOLITION    OF   SLAVERY   BY   GREAT    BRITAIN,    SWEDEN, 
DENMARK,   AND   FRANCE. 

IN  the  year  1823,  a  society  was  formed  "  for  the  miti- 
gation and  gradual  abolition  of  slavery  throughout  the 
British  dominions."  Clarkson,  who  had  been  so  instru- 
mental in  calling  public  attention  to  the  slave-trade, 
devoted  his  time  and  pen  to  this  consummation  of  his 
Work.  During  the  same  year,  the  subject  was  brought 
before  Parliament  by  Mr.  Buxton,  and  immediate  aboli- 
tion urged  by  him,  Wilberforce,  and  others.  Compro- 
mise resolutions,  recommending  judicious  reforms,  were 
proposed  by  government  and  finally  passed.  In  1826, 
the  same  gentlemen  renewed  the  subject  in  Parliament, 
and  numberless  petitions  were  presented  from  various 
portions  of  the  kingdom,  especially  from  the  manufac- 
turing cities ;  the  latter  praying  particularly  that  equal 
facilities  be  afforded  for  commerce  to  the  East  Indies, 
with  those  extended  to  the  West  Indies.  The  motion 
was  renewed  in  various  shapes  from  year  to  year.  Com- 
missioners were  appointed  by  the  government  to  inquire 
into  the  state  of  affairs  in  the  colonies,  and  especially 
into  the  administration  of  civil  and  criminal  justice;  and 
their  elaborate  reports  gave  minute  information  as  to 
the  condition  of  the  islands.1  From  forfeitures  and  es- 
cheats sundry  slaves  had  become  the  property  of  the 

1  See  substance  of  the  three  reports,  published  in  1827.  London. 
The  reports,  complete,  make  a  dozen  folio  volumes. 


ABOLITION  OF  SLAVERY  BY  GREAT  BRITAIN,  ETC. 

government.  These  were  termed  "  crown  slaves."  In 
1830,  these  were  liberated  by  an  order  in  council.  The 
number,  however,  was  very  small,  not  exceeding  a  few 
thousand. 

The  efforts  being  made  for  their  liberation  could  not 
be  concealed  from  the  slaves.  The  colonists  charged 
that  it  was  not  only  industriously  circulated,  but  that 
the  slaves  were  incited  to  insurrection  by  various  Baptist 
and  Methodist  missionaries,  who  were  sent  out  among 
them  from  the  mother  country.  Certain  it  is,  that  insur- 
rection and  rebellion  did  follow,  and  that  numbers  of  the 
slaves  lost  their  lives  in  consequence  thereof.  The  mis- 
sionaries were  arrested,  imprisoned,  and  some  of  them 
driven  from  the  islands. 

In  1832,  committees  were  appointed  in  both  Houses  of 
Parliament  to  inquire  and  report  such  measures  as  were 
expedient  on  the  subject  of  emancipation.  These  spent 
some  time  in  examining  witnesses,  and  reported  their  in- 
vestigations. In  1833,  was  finally  passed  the  act  pro- 
viding for  the  abolition  of  slavery.  Fearing  the  result 
of  immediate  abolition,  the  act  postponed  its  operation 
for  one  year  (till  1st  August,  1834),  and  then  substituted 
a  system  of  apprenticeships,  varying  from  four  to  six 
years,  prescribing  the  number  of  hours  per  week  the 
apprentices  should  labor  for  their  former  masters,  allow- 
ing one-third  of  their  time  for  themselves,  restricting 
the  infliction  of  corporal  punishment,  except  by  order  of 
special  justices  of  the  peace,  and  giving  minute  speci- 
fications of  the  powers  and  rights  both  of  the  masters 
and  the  apprentices.  The  sum  of  £20,000,000  was 
appropriated  to  make  compensation  to  the  owners  for 
the  loss  of  their  property. 

This  act  was  the  result  of  the  wisdom  and  philan- 
thropy of  the  British  nation,  and  great  expectations 
were  entertained  of  the  beneficial  results  to  flow  from 
this  tutelage  of  the  slave,  before  investing  him  with  per- 


CXC  HISTORICAL   SKETCH   OF   SLAVERY. 

feet  liberty.  That  it  failed  of  its  object  is  universally 
admitted,  and  the  emancipationists  attributed  to  this 
apprentice  system  the  many  evils  growing  out  of  this 
violent  uprooting  of  an  entire  social  system.  The  colo- 
nists complained  bitterly,  and  their  opponents  (perhaps 
not  without  cause),  accused  them  of  seeking  to  evade  all 
of  its  provisions.  They  again  accused  the  negroes  of 
miserable  evasions  under  pretence  of  sickness  and  other- 
wise. On  the  day  before  perfect  liberty  was  granted,  the 
infirmaries  of  Jamaica,  says  an  intelligent  French 
writer,  were  crowded  with  negroes  professing  to  be 
sick.  The  next  day  they  were  all  cured.  What  worked 
this  miracle?  The  arrival  of  liberty.1  The  English 
abolitionists  appealed  to  Parliament  to  cut  the  Gordian 
knot  and  grant  immediate  freedom.  The  rights  of  the 
proprietors  were  laughed  to  scorn.  It  is  possible  that 
this  movement  would  have  succeeded,  but  it  was  ren- 
dered unnecessary  by  the  colonies  themselves,  who,  sick 
of  their  apprentices,  granted  entire  freedom  before  the 
day  appointed.  Antigua  led  in  this  movement  con- 
temporaneously with  the  commencement  of  the  system. 
Bermuda  and  other  smaller  islands  followed  the  example 
soon  thereafter.  Barbadoes  came  next  early  in  1838, 
others  followed,  and  on  1st  August  of  that  year,  the 
apprentice  system  ended  in  Jamaica.  Some  insignificant 
outbreaks  had  attended  its  workings,  but  on  the  whole  it 
was  effected  peaceably.2 

In  another  place  we  will  examine  the  results  of  this 
abolition  in  its  effects  upon  these  colonies.  It  may  be 
well  here  to  remark,  that  the  character  of  the  slavery  of 
the  negro  in  the  British  West  Indies  and  in  the  United 
States,  differs  widely.  That  the  negroes  were  not  im- 
proving physieally  in  the  former,  is  proven  conclusively 
by  the  fact,  that  instead  of  increasing  in  numbers,  they 

1  Cassagnac's  Voyage  aux  Antilles,  i,  275. 

2  Report  of  Due  de  Broglie,  p.  10. 


ABOLITION   OF   SLAVERY   BY   GREAT   BRITAIN,    ETC.      CXC1 

were  rapidly  decreasing.  Before  the  abolition  of  the 
trade,  twenty  years  were  estimated  as  the  average  labor 
of  a  healthy  negro.  It  is  estimated,  that  at  least  700,000 
negroes  were  imported  and  retained  in  Jamaica  before 
the  trade  was  checked.  Yet,  in  1834,  there  were  libe- 
rated only  311,000,  showing  a  destruction  of  life  almost 
unparalleled.  That  this  annual  decrease  continued  to 
the  last  days  of  slavery,  is  evident  from  the  registry  of 
deaths  and  births  kept  by  requisition  of  law.  These 
show  a  plurality  of  deaths  for  almost  every  year.  The 
same  results  are  shown  from  the  statistics  of  Barbadoes, 
St.  Vincents,  British  Guiana,  Trinidad,  and  Grenada. 
The  whole  number  of  slaves  imported  into  the  British 
West  Indies  is  estimated  at  1,700,000.  There  were 
emancipated  660,000,  a  little  over  one-third  of  the  im- 
portations. The  decrease  for  the  last  five  years,  before 
emancipation,  was  nearly  one  per  cent,  per  annum. 

On  the  other  hand,  for  333,500,  estimated  as  imported 
into  the  United  States,  there  were,  in  1850,  3,800,000 ; 
showing  a  steady  increase  of  population  itself  almost 
unparalleled.  Had  the  negroes  imported  into  the 
British  West  Indies  increased  in  the  same  ratio  as  they 
increased  here,  instead  of  the  sum  paid,  it  would  have 
required  from  the  British  treasury  the  enormous  sum  of 
,£500,000,000  to  have  compensated  the  masters  at  the 
same  prices.  And  so,  had  the  negroes  decreased  with 
us  as  they  did  in  the  British  colonies,  every  master  could 
now  be  compensated,  at  the  same  rates  paid  there,  with 
the  small  sum  of  X^OOOjOOO.1 

Sweden  and  Denmark,  by  various  provisions,  amelio- 
rated greatly  the  condition  of  the  slaves  in  their  respec- 
tive colonies.  The  hours  of  work  were  prescribed,  their 
food  and  clothing,  the  amount  of  chastisement,  and  the 
instrument.  The  right  of  the  slave  to  his  peculium,  and 
to  make  complaint  against  his  master,  was  secured  by 

1  See  Carey's  Slave-Trade,  Foreign  and  Domestic,  ch.  ii,  iii. 


CXCU  HISTORICAL    SKETCH   OF   SLAVERY. 

law,  and  also  the  right  to  purchase  his  own  freedom.1 
These  regulations  were  not  followed  by  the  elevation  of 
the  slaves,  but  were  followed  by  a  diminution  of  the 
products  of  the  colonies.3  Sweden  finally,  in  1846,  de- 
termined on  the  abolition  of  slavery  in  her  only  island, 
St.  Bartholomew.  There  were  only  578  slaves,  and  to 
purchase  these  there  was  appropriated  about  $50,000, 
payable  in  five  instalments.  On  9th  October,  1847,  the 
work  of  emancipation  was  completed.8  Denmark  fol- 
lowed the  next  year  (1848),  and  by  indemnifying  the 
masters,  gave  liberty  to  the  slaves  in  her  colonies. 

Martinique,  Guadalupe,  Bourbon,  and  French  Guiana, 
had  slavery  restored  under  Napoleon,  although  he  failed 
in  his  efforts  to  restore  it  in  Hayti.  After  British  eman- 
cipation, the  French  abolitionists  renewed  the  agitation 
of  the  question  in  France.  It  was  argued  with  great 
zeal  and  learning  by  its  advocates  and  opponents,  and 
many  volumes  were  written  on  either  side.4  On  26th 
May,  1840,  a  commission  was  appointed  by  a  royal  edict, 
to  examine  into  and  report  upon  the  state  of  the  Colo- 
nies. The  mass  of  material  and  evidence  laid  before 
this  commission  almost  defy  analysis.  The  reports  to 
the  Due  de  Broglie  upon  colonial  questions,  by  M.  J. 
Lechevalier  alone,  are  embodied  in  three  huge  folio 
volumes.5  From  these,  we  learn  that  the  condition  of 
the  French  colonies  was  wretched  in  the  extreme.  The 
abolitionists  at  Paris  were  threatening,  and  urging 
emancipation.  The  colonists  were  protesting,  and  yet 

1  Schoelcher,  Histoire  de  FEsclavage,  i,  532 ;  Gurney's  Letters  on  the 
West  Indies,  19. 

8  Gurney's  Letters  on  the  West  Indies,  17  et  seq. 

3  Schcelcher,  as  above,  534. 

4  It  is  a  little  curious  that  Voltaire,  who  painted  so  vividly  the  miseries 
of  the  slave  and  the  slave-trade,  in  Candide,  took   an  interest  in  a 
slave-ship,  and  rejoiced,  in  a  letter  to  his  partner,  in  having  "  made  a 
good  speculation  and  done  a  good  action."     Levavasseur,  pp.  75,  76. 

6  The  curious  can  find  a  list  of  these  documents  prefixed  to  the  report 
of  the  Due  de  Broglie. 


ABOLITION   OF   SLAVERY   BY   GREAT   BRITAIN,    ETC.     CXC111 

in  continual  suspense.  The  slaves  were  discontented 
and  rebellious,  causing  frequent  insurrections,  with  much 
loss  of  life.  Once  in  the  enjoyment  of  freedom,  of  which 
they,  were  again  deprived,  surrounded  by  the  English 
colonies,  where  abolition  had  not  only  granted  liberty  to 
the  slaves,  but  a  refuge  and  asylum  for  all  fugitives  from 
the  French  colonies,  with  the  hopes  of  abolition  ever 
held  out  before  them,  it  is  not  at  all  strange  that  two 
hundred  and  fifty  thousand  negroes  should  resist  the 
domination  of  the  few  constituting  their  masters.  The 
report  of  this  Commission  shows,  that  all  parties  agreed 
as  to  the  necessity  of  some  action  on  the  part  of  the 
home  government.  The  abolitionists  insisted  on  imme- 
diate freedom.  The  colonists  insisted  that  an  end  be 
put  to  this  state  of  suspense,  by  perpetuating  the  old 
regime.1  The  Commission,  after  examining  both  sides 
with  apparent  candor,  recommended  as  the  most  salutary 
plan  the  apprentice  system  adopted  by  the  English 
government.  The  evils  flowing  from  it  were  admitted, 
but  the  Commission  looked  hopefully  to  time ;  which, 
by  replacing  the  old  generation  of  slaves  with  a  new  of 
freeborn  men  educated  to  liberty,  would  do  away  with 
the  idleness,  vice,  and  superstition,  which  they  attributed 
to  the  former  state  of  bondage.2  Time  has  shown  that 
this  hope  was  ill-founded.  The  secret  of  the  error  was 
the  ignorance  of  European  statesmen  of  the  negro  cha- 
racter. The  result  of  this  Commission  was  the  law  of 
18th  July,  1843,  which  sought  to  ameliorate  the  condi- 
tion of  the  slaves,  and  to  regulate  the  relation  of  master 
and  slave.  It  provided  for  the  punishment  of  the  slaves, 
for  their  marriage,  for  their  mental  and  religious  instruc- 
tion, and  for  the  protection  and  security  of  their  pecu- 

1  See  the  Report  of  Due  de  Broglie  to  the  Colonial  Secretary,  March, 
1843. 

2  There  was  much  plausibility  in  this  hope.     Moses,  under  Divine  direc- 
tion, kept  the  Israelites  in  the  wilderness  until  the  generation  of  Egyp- 
tian slaves  was  extinct.     These  were  not  the  conquerors  of  Canaan. 

M 


CXC1V  HISTORICAL   SKETCH    OF    SLAVERY. 

Hum.  It  regulated  the  number  of  hours  of  labor  to  be 
required  of  the  slaves,  provided  for  their  holidays,  and 
required  that  one  day  in  each  week  should  be  allowed 
them  to  labor  for  themselves ;  and  that  land  should  be 
provided  for  their  cultivation  on  their  own  account,  with 
various  other  similar  provisions,  calculated  to  insure 
humane  treatment. 

It  gave  also  to  every  slave  the  privilege  of  purchasing 
himself,  his  parents,  or  his  descendants,  and  provided  a 
mode  of  ascertaining  the  price  where  the  master  and 
slave  could  not  agree.  This  law  was  followed  by  ano- 
ther, of  19th  July,  1845,  to  encourage  the  introduction 
of  free  laborers  from  Europe  into  the  colonies,  by  which 
930,000  francs  were  appropriated,  400,000  of  which  were 
to  be  used  in  aiding  slaves  in  the  purchase  of  them- 
selves.1 That  these  laws  failed  of  their  desired  effect 
seems  to  be  acknowledged.  The  abolitionists  complained 
that  the  colonial  officers  joined  with  the  colonists  in 
having  them  evaded.  In  January,  1846,  no  part  of  the 
400,000  francs  had  been  used  in  effecting  the  purchase 
of  slaves.  In  March,  1846,  3,900,000  francs  had  been 
expended  for  establishing  schools,  to  which  the  young 
negroes  were  gratuitously  admitted,  and  yet  only  twelve 
such  scholars  had  ever  partaken  of  their  benefits.  Whip- 
ping having  been  virtually  abolished  by  the  act,  cudgel- 
ling was  substituted  in  its  place.  It  is  useless  to  multiply 
the  details.2 

The  French  Government  were  not  prepared  to  pay  the 
requisite  indemnity  of  the  purchase  of  250,000  slaves, 
though  constantly  urged  thereto  by  the  abolitionists. 
In  June,  1846,  140,000  francs  were  appropriated  for  the 
purchase  of  the  royal  slaves  (esclaves  du  domaine),  and 
this  was  the  only  appropriation  ever  made  for  this  pur- 
pose. In  1847,  petitions  signed  as  was  said  by  one  of 

1  Schoelcher,  Histoire  de  1'Esclavage,  i,  33-38. 

2  Schoelcher,  i,  passim. 


ABOLITION   OF    SLAVERY   BY    GREAT    BRITAIN,    ETC.      CXCV 

the  orators,  by  "  tous  les  Fran^ais,"  were  again  presented, 
demanding  the  complete  and  immediate  emancipation 
of  the  slaves.  A  law  to  that  effect  is  proposed  in  the 
Chamber  of  Deputies,  and  ably  advocated  among  others 
by  M.  Ledru  Rollin,  but  it  could  not  be  passed.1 

What  could  not  be  effected  by  the  Kingdom  of  France, 
was  soon  accomplished  by  the  Kevolutionary  Republic. 
One  of  the  first  acts  of  the  Provisional  Government  of 
1848,  was  to  declare  freedom  to  all  held  in  bondage 
throughout  the  French  dominions.  No  pretence  of  in- 
demnity was  attempted  at  the  time.  In  the  mad  zeal 
for  new-born  liberty,  justice  was  forgotten.  We  shall 
hereafter  examine  the  effects  of  this  emancipation.  Sub- 
sequently, a  mere  nominal  indemnity  has  been  paid  to 
the  planters. 

1  Schoelcher,  ii,  135-146. 


CHAPTER  XIV. 

THE   EFFECTS   OF   ABOLITION. 

MY  intention  was  to  have  examined  minutely  the 
effects  of  abolition  upon  Hayti  and  the  British  West 
Indies,  to  have  followed  the  history  of  the  transition,  to 
have  noted  the  tendency  and  gradual  return  to  barbarism, 
of  a  race  rescued  from  that  condition  only  by  slavery, 
and  to  have  sought  in  the  character  of  the  negro  for  the 
reasons  of  this  decline ;  but  the  extent  of  this  prefatory 
sketch  forbids  so  minute  a  detail.  It  is  unquestionably 
true,  that  from  the  ancient  kingdom  of  Meroe,  in  which, 
centuries  before  Christ,  the  experiment  of  a  negro  govern- 
ment of  a  nation  far  advanced  in  civilization,  was  at- 
tended with  retrogradation  and  final  extinction,  down  to 
the  latest  abolition  in  the  West  Indies,  however  varying 
the  circumstances,  however  cautious  and  wise  the  pro- 
visions, the  result  has  been  uniformly  and  invariably 
disastrous  to  every  element  of  civilization.  The  fact  is 
admitted;  the  difference  of  opinion  exists  only  as  to 
causes. 

"  From  1804  downwards,  the  history  of  the  unfortu- 
nate island  (Hayti),  has  been  little  or  nothing  else  than 
the  history  of  rapine — one  black  rising  up  to  contest  the 
sovereignty  with  another,  and  filling  the  island  with 
scenes  of  confusion  and  misery,  which  go  far  to  prove 
the  theory  of  those  who  maintain  that  the  negro  race  is 
by  natural  incapacity  unfitted  for  self-government." 
Such  is  the  testimony  of  an  intelligent  Englishman,  who 


THE   EFFECTS    OF   ABOLITION.  CXCV11 

visited  St.  Domingo  in  1849,  and  whose  prejudices  are 
all  in  favor  of  the  negro  race.1  The  statistics  of  the 
commerce  of  the  islands  show  a  continual  retroces- 
sion. Every  visitor,  whatever  be  his  opinions  as  to 
negro  capacity,  notes  and  admits  the  evidences  of  decay 
in  every  mark  of  advancement  and  civilization,  and  to- 
day the  mock  empire  of  Hayti,  the  subject  of  ridicule 
and  regret,  is  but  a  transfer  of  an  African  despotism 
from  Ethiopia  to  the  West  Indies.3 

The  history  of  Hayti  and  its  present  condition  show 
the  results  of  an  abolition  effected  by  insurrection  and 
revolution.  In  these  causes,  the  abolitionists  of  Eng- 
land and  France  found  reasons  for  all  the  savage  barba- 
rity, the  miserable  idleness,  the  continual  outbreaks, 
the  ruined  cities,  the  abandoned  agriculture,  in  short, 
for  the  dark  mantle  of  heathenism  which  settled  upon 
this  once  beautiful  and  fertile  island.3  A  peaceable 
emancipation,  with  proper  guards  against  the  natural 
outbreaks  of  too  sudden  liberty,  with  judicious  provision 
for  educating  and  training  the  rising  generation,  whose 
spirits  had  never  been  crushed  by  the  galling  chains  of 
slavery :  this  was  the  true  philosophy  and  philanthropy, 
and  from  such  a  course,  results  very  different  from  those 
witnessed  in  Hayti,  were  confidently  predicted  and  sin- 
cerely anticipated.  As  we  have  seen,  Great  Britain  took 
the  first  steps  in  this  new  experiment.  A  gradual 
emancipation,  during  which  an  apprentice  system  and 
ample  educational  privileges  were  provided,  was  the 
result  of  the  best  statesmanship  and  philanthropy  of  the 
wisest  and  best  of  the  nations  of  the  Old  World.  Its 

1  Impressions  and  Experiences  of  the  West  Indies  and  North  America, 
in  1849,  by  Robert  Baird,  A.M.,  82. 

2  Franklin's  Present  State  of  Hayti ;  Levavasseur's  Esclavage  de  la 
race  noire,  22,  et  seq. 

3  Colonies  Etrangeres,  by  Schoelcher,  vol.  ii,  pp.  171-320,  gives  a 
minute  history  of  this  period;  pp.  321-331,  give  the  excuses  of  the 
abolitionists. 


CXCVlii  HISTORICAL   SKETCH   OF   SLAVERY. 

first  fruits  differed  so  widely  from  prophecy,  that  new 
causes  bad  to  be  sought  to  explain  the  result.  These 
were  found  in  this  tardy  system  of  gradual  emancipa- 
tion. Immediate  and  unconditional  manumission  was 
the  only  panacea.  We  have  seen  how  soon  it  followed. 
The  world  knows  its  results,  and  none  are  more  ready 
to  acknowledge  the  utter  failure  of  the  entire  scheme, 
than  the  enlightened  statesmen  and  patriots  of  England. 
This  is  not  attributable  to  their  want  of  statesmanship 
or  foresight.  The  whole  secret  of  the  failure  was  their 
utter  ignorance  of  the  negro  character.  Tbe  same  legis- 
lation for  a  body  of  oppressed  Saxons  or  Celts,  would 
have  been  productive  of  blessings  commensurate  with 
the  sacrifices  made.  But  for  the  negro,  they  labored  not 
only  in  vain  but  to  his  injury. 

There  is  but  one  testimony  as  to  the  present  condition 
of  the  British  West  Indies.  "  Magnas  inter  opes  inops," 
is  the  lamentable  condition  of  them  all,  and  "  daily  they 
are  sinking  deeper  and  deeper  into  the  utter  helplessness 
of  abject  want."  Taking  Jamaica,  the  largest  and  most 
visited,  as  a  standard  (ex  uno,  disce  omnes) :  "  Shipping 
has  deserted  her  ports ;  her  magnificent  plantations  of 
sugar  and  coffee  are  running  to  weeds ;  her  private  dwell- 
ings are  falling  to  decay;  the  comforts  and  luxuries 
which  belong  to  industrial  prosperity  have  been  cut  off, 
one  by  one,  from  her  inhabitants ;  and  the  day  is  at  hand 
when 'there  will  be  none  left  to  represent  the  wealth, 
intelligence,  and  hospitality,  for  which  the  Jamaica 
planter  was  once  so  distinguished."1 

The  condition  of  the  Colonies  has  been  frequently 
the  subject  of  investigation  by  committees  of  the  British 
Parliament ;  and  huge  volumes  are  filled  with  the  evi- 

»Bigelow's  Notes  on  Jamaica  (1850);  The  West  Indies  and  North 
America,  by  Robert  Baird  (1849);  The  State  and  Prospects  of  Jamaica, 
by  Dr.  King ;  Colonies  Etrangeres,  by  Schcelcher ;  Gurney,  on  the  West 
Indies;  Cassagnac,  Voyage  aux  Antilles;  Negromania,  by  Campbell, 
and  opinions  of  Knox,  Franklin,  and  others,  cited  by  him. 


THE    EFFECTS    OF   ABOLITION.  CXC1X 

dence  taken  before  such  commissions.  Legislative  pal- 
liatives and  cures  have  been  exhausted  in  seeking  to 
restore  prosperity  to  these  rich  dependents  of  the  crown. 
Despairing  of  ever  infusing  industry  and  thrift,  where 
nature  implanted  idleness  and  improvidence,  resort  has 
been  and  is  now  being  had  to  the  introduction  of  Coolies 
from  East  India,  to  supply  the  labor  necessary  for  an 
island  amply  supplied,  could  it  be  brought  into  requisi- 
tion ;  and  even  a  modified  resumption  of  the  importa- 
tion from  Africa  meets  with  favor  from  British  states- 
men, substituting  (nominally,  as  it  must  be)  voluntary 
for  involuntary  emigration. 

N"ot  alone  in  material  wealth  has  been  the  decline  of 
these  once  flourishing  colonies.  The  condition  of  the 
negroes  physically,  intellectually,  and  morally,  keeps 
pace  with  this  downward  tendency.  Their  numbers  are 
annually  decreasing  from  disease,  the  result  of  unclean- 
liness,  and  from  want,  the  result  of  improvidence.  In- 
crease of  crime  is  proportionate  with  the  spread  of 
misery.  Chapels  and  schools  are  abandoned,  and  faithful 
teachers  and  missionaries  have  returned  in  despair  to 
Europe.1 

If  the  reports  of  travellers  and  the  local  newspapers 
can  be  relied  on,  these  islands  have  not  yet  reached  the 
lowest  depth  of  degradation  and  misery  to  which  they 
are  doomed.  Every  year  but  adds  to  the  desolation, 
physical  and  moral.2 

The  other  British  possessions  upon  which  the  decree 

1  See  Reports  of  Missionaries,  made  in  1849,  quoted  by  Dr.  King,  p. 
Ill ;  The  Slave-Trade,  Foreign  and  Domestic,  by  Carey,  p.  27. 

2  See  numerous  quotations,  in  Mr.  Carey's  work,  pp.  25-35 ;  also  an 
instructive  statement,  by  the  West  India  Association  of  Glasgow,  made 
April  14th,  1853 ;  and  found  in  New  York  Herald,  May  31,  1853.     From 
the  official  documents  attached,  it  appears  that  from  1832  to  1847,  605 
sugar  and  coffee  plantations,  containing  356,432  acres  of  land,  and  afford- 
ing employment  to  49,383  laborers,  had  been  entirely  abandoned.     From 
1848  to  1853,  513  more,  containing  391,187  acres,  were  totally  or  par- 
tially abandoned. 


CC  HISTORICAL   SKETCH   OF   SLAVERY. 

of  emancipation  took  effect,  have  experienced  the  same 
results.  A  graphic  account  of  Guiana  is  given  in  the 
report  of  a  commission,  appointed  in  1850,  to  inquire 
into  its  state  and  prosperity.  "  The  most  ordinary  marks 
of  civilization  are  fast  disappearing,"  and  the  prediction 
is  made  of  "  its  slow  but  sure  approximation  to  the  con- 
dition in  which  civilized  men  first  found  it."1 

In  Southern  Africa  the  effects  have  been  equally  dis- 
astrous. Though  the  British  residents  at  the  Cape  keep 
up  a  flourishing  trade,  the  agricultural  interests  have 
suffered  for  want  of  laborers,  and  the  farms  have  run  to 
waste.9  The  same  effects  followed  the  Emancipation  Act 
at  Mauritius,  and  Coolies  have  been  introduced  to  supply 
the  place  of  former  laborers.  The  free  blacks  every- 
where were  idle,  unreliable,  vicious,  and  thievish.3 

The  same  results  have  followed  the  experiments  of 
abolition  made  in  the  "West  Indies  by  other  European 
nations.  In  the  Danish  colonies,  where  the  slaves  were 
well  treated,  the  free  negroes  are  described  as  living  in 
"  the  greatest  poverty,  filth,  and  wretchedness."4  The 
prosperity  of  the  island  is  in  the  same  degree  dimi- 
nished. 

We  shall  see  hereafter  that  the  results  in  South  Ame- 
rica, Mexico,  and  Central  America,  exhibit  a  negro  popu- 
lation in  the  same  abject  condition.5 

1  Lord  Stanley's  Letters  to  Mr.  Gladstone. 

2  United  States  Japan  Expedition,  i,  pp.  99-101,  103 ;  The  Cape  and 
the  Kaffirs,  by  Harriet  Ward. 

3  United  States  Japan  Expedition,  103,  109. 

4  Cor.  of  N.  Y.  Herald,  Nov.  9th,  1855 ;  Brougham's  Colonial  Policy, 
Bk.  IV,  Sect.  1. 

5  Dunn's  Sketches  of  Guatemala. 


CHAPTER  XV. 

EFFECTS   OP  ABOLITION   IN   THE   UNITED   STATES. 

THE  number  of  negroes  emancipated  in  the  United 
States  was  comparatively  small,  but  the  effects  do  not 
vary  materially  as  to  their  condition,  from  those  already 
noticed.  The  fact  of  their  limited  number,  as  well  as 
the  additional  facts,  that  previous  to  their  emancipation 
they  were  employed  but  little  in  agricultural  pursuits, 
and  that  the  nature  of  the  agriculture  of  the  Northern 
States  of  the  Union  was  illy  suited  to  this  species  of  labor, 
protected  the  prosperity  of  those  States  from  the  depress- 
ing influences  experienced  elsewhere  from  the  abolition 
of  slavery.  That  their  physical  condition  does  not  com- 
pare favorably  with  that  of  the  slaves  of  the  South  is 
evident  from  the  decennial  census  of  the  United  States, 
showing  a  much  larger  increase  in  the  latter  than  in  the 
former.  No  surer  test  can  be  applied.1 

1  In  order  to  obtain  accurate  information,  I  sent  a  circular  to  the  Go- 
vernors and  leading  politicians  of  the  non-slaveholding  States.  I  received 
answers  as  follows : 

Maine,  Hon.  I.  J.  D.  Fuller. 

Vermont,  Hon.  J.  Meacham. 

Connecticut,  Gov.  Pond,  and  Hon.  0.  S.  Seymour. 

Rhode  Island,  Hon.  B.  B.  Thurston. 

New  Jersey,  Gov.  Foot. 

New  York,  Hon.  S.  G.  Haven. 

Pennsylvania,  Hon.  B.  D.  Ingraham. 

Indiana,  Gov.  Wright. 

Illinois,  Gov.  Matteson,  Hon.  W.  A.  Richardson. 

Iowa,  Judge  Mason,  Hon.  Mr.  Hern. 

Michigan,  Gov.  Parsons. 


CCli  HISTORICAL   SKETCH   OF   SLAVERY. 

Notwithstanding  the  very  labored  efforts  made  for 
their  intellectual  improvement,  taken  as  a  body  they 
have  made  no  advancement.  Averse  to  physical  labor, 
they  are  equally  averse  to  intellectual  effort.  The  young 
negro  acquires  readily  the  first  rudiments  of  education, 
where  memory  and  imitation  are  chiefly  brought  into 
action,  but  for  any  higher  effort  of  reason  and  judgment 
he  is,  as  a  general  rule,  utterly  incapable.1 

I  extract  from  their  answers : 

Maine. — "  The  condition  of  the  negro  population  varies ;  but  is  very 
far  below  the  whites." 

Vermont. — "  Their  condition  and  character  have  great  varieties.  They 
are  not  in  as  good  condition  as  the  whites." 

Connecticut. — Gov.  Pond  says :  "  The  condition  of  the  negro  popula- 
tion, as  a  class,  is  not  thrifty,  and  does  not  compare  favorably  with  the 
whites.  There  are  many,  comparatively  speaking,  who  are  industrious." 

Rhode  Island. — "  They  are,  generally,  industrious  and  frugal." 

New  Jersey. — "  Their  condition  is  debased ;  with  few  exceptions  very 
poor ;  generally  indolent." 

New  York. — "  The  condition  of  the  negro  population  is  diversified, — 
some  prosperous,  some  industrious.  They  have  no  social  relations  with 
the  whites.  Generally  on  about  the  same  level  that  whites  would  occupy 
with  like  antecedents." 

Pennsylvania. — "I  deem  the  condition  of  the  negro  population,  in 
this  State,  to  be  that  of  a  degraded  class,  much  deteriorated  by  freedom. 
They  are  not  industrious." 

Indiana. — "They  are  not  prosperous.  The  majority  of  them  are  not 
doing  well.  We  have  sent  off  thirty  or  forty  this  year  to  Liberia,  and 
hope  to  send  off  one  hundred  or  more,  next  year,  and  finally  to  get  rid  of 
all  we  have  in  the  State,  and  do  not  intend  to  have  another  negro  or 
mulatto  come  into  the  State." 

Illinois. — "  As  a  class,  they  are  thriftless  and  idle.  Their  condition 
far  inferior  to  that  of  the  whites."  (Gov.)  "About  the  towns  and  cities, 
idle  and  dissolute,  with  exceptions.  In  the  rural  districts,  many  are  in- 
dustrious and  prosperous."  (Mr.  Richardson.) 

Iowa, — "  Very  few  negroes  in  Iowa.  Far  above  the  condition  of  those 
met  with  in  our  Eastern  cities." 

Michigan. — "  Tolerably  prosperous.  Far  behind  the  white  popula- 
tion." 

1  Maine. — "  Admitted  into  the  public  schools  with  the  whites.  Very 
far  below  them  in  education." 


EFFECTS    OF   ABOLITION    IN    UNITED   STATES.         CC111 

His  moral  condition  compares  unfavorably  with  that 
of  the  slave  of  the  South.  He  seeks  the  cities  and 
towns,  and  indulges  freely  in  those  vices  to  which  his 
nature  inclines  him.  His  friends  inveigh  against  "  the 
prejudice  of  color,"  hut  he  rises  no  higher  in  Mexico, 
Central  America,  New  Grenada,  or  Brazil,  where  no 
such  prejudice  exists.  The  cause  lies  deeper:  in  the  na- 
ture and  constitution  of  the  negro  race.1 

Vermont. — "Generally  able  to  read  and  write;  a  few  are  liberally  edu- 
cated ;  not  like  the  whites." 

Connecticut. — "Fall  much  below  the  whites  in  education." 

Rhode  Island. — "  Some  are  educated  in  the  district  schools.  Compare 
well  with  the  whites  of  their  condition." 

New  Jersey. — "  Generally  ignorant.  Far  below  the  whites  in  intelli- 
gence." 

New  York. — "  Generally  very  poorly,  or  but  little  educated." 

Pennsylvania. — "Not  educated.  It  is  remarkable,  that  almost  all  the 
decent  and  respectable  negroes  we  have,  have  been  household  slaves  in 
some  Southern  State." 

Indiana. — "  Not  educated." 

Illinois. — "Ignorant."  (Gov.) 

Michigan. — "  Not  generally  educated.     Far  below  the  whites." 

1  Maine. — "  Far  below  the  whites." 

Vermont. — "  Not  as  good  as  the  whites." 

Connecticut. — "  Does  not  compare  favorably  with  the  whites."  (Gov.) 
"  They  are,  with  us,  an  inferior  caste ;  and  in  morality  fall  much  below  the 
whites."  (Seymour.) 

New  Jersey. — "  Immoral ;  vicious  animal  propensities  ;  drunkenness, 
theft,  and  promiscuous  sexual  intercourse  quite  common.  One-fourth  of 
the  criminals  in  the  State  prison  are  colored  persons ;  while  they  consti- 
tute only  one  twenty-fifth  of  the  population." 

New  York. — "  Diversified  ;  some  moral." 

Pennsylvania. — "Immoral.  I  am  satisfied,  from  forty  years'  attention 
to  the  subject,  that  the  removal  of  the  wholesome  restraint  of  slavery, 
and  the  consequent  absence  of  the  stimulus  of  the  coercion  to  labor  of 
that  condition,  have  materially  affected  their  condition  for  the  worse. 
They  exhibit  all  the  characteristics  of  an  inferior  race,  to  whose  personal 
comfort,  happiness,  and  morality,  the  supervision,  restraint,  and  coercion 
of  a  superior  race  seem  absolutely  necessary." 

Indiana. — "  In  many  instances  very  immoral." 

Illinois. — "  Thriftless,  idle,  ignorant,  and  vicious."  (Gov.)  "  In  towns 
and  cities  dissolute,  with  exceptions."  (Richardson.) 


CC1V  HISTORICAL  SKETCH   OF   SLAVERY. 

The  emancipated  negroes  do  not  enjoy  full  and  equal 
civil  and  political  rights  in  any  State  in  the  Union,  ex- 
cept the  State  of  Vermont.  In  several  of  the  States  they 
are  not  permitted  to  vote,1  in  some  under  peculiar  re- 
strictions.3 In  almost  every  State  where  the  matter  has 
been  made  a  subject  of  legislation,  intermarriages  with 
the  whites  are  forbidden.3  In  none  are  such  marriages 
at  all  common.4  In  many  they  are  forbidden  to  serve  as 
jurors,  or  to  be  sworn  as  witnesses  against  a  white  per- 
son,5 or  hold  any  elective  office.6 

The  criminal  statistics  of  the  slaveholding  and  non- 
slaveholding  States  show  that  the  proportion  of  crime 
committed  by  negroes  in  the  former  does  not  reach  the 
ratio  of  this  population  as  compared  with  the  whites,7 
while  in  the  latter  the  ratio  is  much  greater.  The 
same  is  true  of  the  statistics  of  mortality  and  disease. 
The  apparent  disproportion  in  the  former  case  is  greater 
than  the  truth,  as  many  petty  crimes  by  slaves  do  not  reach 
the  courts  ;  and  in  the  latter,  it  may  be  truly  said  that 
the  southern  climate  is  more  favorable  to  the  health  and 
longevity  of  the  negro.  But  making  due  allowances  in 
both  cases  for  these  causes,  it  is  still  true,  that  the  ne- 

lowa. — "  Of  a  fair  character." 

Michigan. — "  Tolerably  moral.     Far  below  the  whites." 
1  Connecticut,   New   Jersey,   Pennsylvania,   Indiana,   Illinois,   Iowa, 
Michigan.  2  New  York. 

3  Maine,  Rhode  Island,  Indiana,  Illinois,  Michigan. 

4  Connecticut. — Issue  cannot  vote. 

New  Jersey. — No  legislation  ;  and  no  cases  of  such  marriage. 
New  York. — Issue  considered  as  blacks. 
Pennsylvania. — Issue  considered  as  blacks. 
Iowa. — No  such  cases. 

5  Connecticut,  New  Jersey,  Indiana,  Illinois,  Iowa. 

6  Connecticut,  New  Jersey ,.  Pennsylvania,  Indiana,  Illinois,  Michigan. 

7  Judge  Starnes,  of  Georgia,  published  several  articles,  giving  statistics 
on  this  point,  worthy  of  a  more  lasting  existence,  than  derived  from  the 
columns  of  a  newspaper. 


EFFECTS    OF   ABOLITION   IN    UNITED   STATES.  CCV 

groes  are  less  addicted  to  crime,  and  are  more  healthy 
and  longlived,  in  a  state  of  slavery  than  of  freedom.1 

1  In  giving  my  conclusions,  as  to  the  free  negroes  of  the  North,  I  have 
relied  on  numberless  authorities,  combined  with  personal  observation.  I 
subjoin  only  a  few.  Paulding,  on  Slavery ;  Abolition  a  Sedition,  by  A 
Northern  Man;  Bishop  Hopkins's  American  Citizen,  135;  Seaboard 
Slave  States,  p.  125;  Reports  of  American  Colonization  Society;  Re- 
port of  Naval  Committee  of  H.  of  R.,  on  establishing  a  line  of  Mail 
Steamships  to  Liberia  (1850) ;  Negromania,  by  John  Campbell,  being  a 
collection  of  papers  by  distinguished  men. 


CHAPTER  XVI. 

SLAVERY  IN   SOUTH   AMERICA. 

THE  slave-trade  was  kept  open  by  the  Brazilian 
Government  to  a  very  late  period.  The  number  of  ne- 
groes and  persons  of  mixed  blood  within  the  territory  is 
estimated  as  bearing  the  proportion  of  five  to  one  of  the 
white  population.  All  of  these  are  not  slaves ;  the  bond 
being  estimated  as  only  two-fifths  of  the  whole.  The 
number  of  free  negroes,  mulattoes,  &c.,  is  hence  very 
considerable.  There  is  probably  no  state  in  the  world 
where  there  is  less  "  prejudice  of  color"  than  in  Brazil, 
though  a  slaveholding  state.  At  court,  in  the  army,  in 
the  haunts  of  business,  everywhere  may  be  found  freely 
mingling  together  persons  of  every  hue.  The  free  ne- 
groes are  frequently  the  owners  of  numbers  of  slaves, 
and  are  reported  to  be  the  most  cruel  masters.  The 
slaves  generally  are  kindly  treated  by,  and  are  attached 
to  their  masters,  though  destitute  in  a  great  measure  of 
the  sense  of  gratitude.  They  are  "  indolent,  thought- 
less, and  licentious,"  but  not  rebellious.1 

New  Grenada,  with  all  other  Spanish  provinces,  in- 
herited negro  slavery.  The  numbers  were  never  very 
great,  nor  have  they  increased  as  in  the  United  States ; 
while  the  mixed  and  copper-colored  constitute  nearly 

1  For  these  facts,  I  rely  principally  on  Wilkes's  Exploring  Expedition, 
vol.  i,  pp.  36,  56-68,  89,  and  Brazil  and  La  Plata,  by  C.  S.  Stewart,  U. 
S.  N.  In  Brazil,  as  in  other  slaveholding  states,  there  seem  to  be  no 
beggars. 


SLAVERY   IN    SOUTH    AMERICA.  CCVI1 

oue-third  of  the  entire  population.  The  negroes  were  es- 
timated, in  1853,  at  only  80,000,  which  is  scarcely  one- 
thirtieth.  In  1821,  just  after  the  Revolution,  a  law  was 
passed  by  the  Republic  of  Colombia,  for  the  gradual 
manumission  of  slaves,  and  all  born  after  that  date  were 
declared  free  at  the  age  of  eighteen.  By  a  law  of  1851, 
slavery  was  entirely  abolished  in  !N"ew  Grenada,  by 
giving  liberty  to  all  who  remained  slaves,  on  the  1st  of 
January,  1852,  provision  being  made  for  the  payment 
of  the  owners.1  The  results  of  this  emancipation  have 
been  the  same  with  similar  efforts  elsewhere.  The  ne- 
groes, as  a  class,  are  idle,  immoral,  vicious,  preferring  to 
beg  and  steal  rather  than  work.  The  destruction  and 
desolation  in  some  of  the  finest  agricultural  districts, 
consequent  upon  the  Act  of  1821,  are  described  as  de- 
plorable in  the  extreme.  The  want  and  destitution  of 
the  poorer  classes  are  pitiable.  "  Their  morals  can  sink 
no  lower,  and  their  religion  can  raise  them  no  higher."3 
Slavery  exists  in  other  portions  of  South  America.  In 
Chili  and  Peru  there  seem  to  be  but  few  negroes.  In 
the  latter  the  slaves  are  treated  with  great  kindness.  It 
is  no  unusual  sight  to  see  a  mistress  and  her  slave  kneel- 

1  Memoir  on  the  Physical  and  Political  Geography  of  New  Grenada, 
by  General  De  Mosquera,  ex-President  of  the  same. 

2  New  Grenada,  by  Isaac  P.  Holton,  pp.  173,  269,  527,  533.     I  am 
indebted  for  some  of  the  facts  stated,  to  letters  from  Col.  King  and  Judge 
Bowlin,  late  ministers  of  the  United  States  to  New  Grenada.     The  latter 
says,  "  The  universally  admitted  characteristics  of  the  negro,  when  un- 
restrained,— of  indigence,  improvidence,  and  indolence, — are  strikingly 
exemplified  in  New  Grenada,  where  every  avenue  is  equally  open  to 
him  as  to  the  white  man,  to  elevate  his  condition ;  yet,  if  he  does  not 
recedo,  he  certainly  makes  no  advance  in  the  progress  to  a  higher  civili- 
zation."    Living  on  tropical  fruits,  and  indulging  in  intoxicating  drinks, 
he  adds,  "He  generally  goes  in  a  state  of  nudity:  and  when  he  does  not, 
he  merely  wears  a  coarse  shirt,  or  a  shirt  and  pantaloons  made  of  coarse 
cotton."     "  Take  them  all  in  all,  they  are  a  miserable  race,  encumber- 
ing the  earth,  whose  vicious  qualities  civilization  seems  only  to  develop 
more  strongly." 


CCV111  HISTOKICAL   SKETCH    OF   SLAVERY. 

ing  in  a  cathedral,  side  by  side,  on  the  same  piece  of 
clothJ 

The  negroes  in  La  Plata  are  more  numerous.  Com- 
modore Stewart  saw  more  than  one  thousand  negro 
washerwomen  at  one.  time  on  the  shores  of  the  river. 
In  the  late  Revolution  the  negroes  were  offered  their 
liberty,  without  compensation  to  their  masters,  on  condi- 
tion of  enlisting  as  soldiers  for  the  war.  Many  availed 
themselves  of  this  privilege.9 

1  Wilkes's  Exp.  Exp.  vol.  i,  257  ;  vol.  ix,  Races  of  Man,  by  Dr.  Picker- 
ing. 

2  Brazil  and  La  Plata,  by  C.  S.  Stewart. 


CHAPTER  XVII. 

.     SLAVERY   IN    THE   UNITED    STATES. 

slavery  continues  to  exist  in  fifteen  of  the 
United  States  of  America.  In  Virginia,  Kentucky,  and 
Missouri,  attempts  have  been  made  to  bring  about  eman- 
cipation by  the  State  governments ;  it  being  admitted  by 
all  that  the  Federal  Government  has  no  power  to  interfere 
with  or  seek  to  regulate  the  institution  within  the  States. 
In  1787,  the  first  abolition  society  was  formed,  since  which 
time  they  have  greatly  increased,  their  obj  ect  being  to  bring 
to  bear  upon  the  slaveholding  States  the  powerful  public 
sentiment  of  the  other  States ;  to  bring  into  action  the 
powers  of  Congress,  wherever  legitimately  to  be  exer- 
cised, against  the  continuance  of  the  institution,  and 
thus  indirectly  to  effect  what  could  not  be  done  directly. 
The  infatuated  zeal  of  many  fanatics  has  carried  them 
farther,  and  induced  them  to  endeavor,  by  incendiary 
publications  and  agents,  to  excite  insurrections  among 
the  slaves,  and  in  other  ways  to  force  the  masters  to 
consent  to  their  emancipation.  In  later  years,  some  of 
the  more  excited  have  inveighed  against  the  Constitution 
of  the  United  States,  as  a  "league  with  hell,"  because 
its  provisions  limited  the  powers  of  the  general  govern- 
ment on  this  subject.  In  fact,  the  history  of  abolition- 
ism in  the  United  States  has  been  the  history  of  fanati- 
cism everywhere,  whose  later  deeds  are  not  even  shadowed 
forth  in  its  earlier  years ;  and  with  whom  obstacles  and 
impediments,  the  more  insurmountable  they  are  in  fact, 


CCX  HISTOKICAL   SKETCH   OF    SLAVERY. 

but  feed  the  flame  of  zeal,  and  more  effectually  dethrone 
the  reason.  This  class  of  abolitionists,  however,  have 
ever  been  comparatively  few  in  number ;  while  those  who 
sympathize  with  the  objects  above-mentioned  (the  legiti- 
mate use  of  means  to  extinguish  slavery),  have  ever  been, 
in  the  non-slaveholding  States,  numerous  and  respect- 
able. The  points  of  conflict  in  our  national  assemblies, 
upon  which  difficulties  have  arisen  between  the  advo- 
cates of  these  doctrines  and  their  opponents,  are  based 
upon  the  question,  what  powers  were  given  by  the  Con- 
stitution to  Congress,  and  at  what  time  and  in  what  way 
they  could  be  exercised  ?  Such  have  been  the  questions 
as  to  the  admission  of  new  States  into  the  Union,  where 
slavery  was  recognized ;  the  abolition  of  slavery  and  the 
slave-trade  in  the  District  of  Columbia,  and  in  the  forts 
and  arsenals,  and  other  public  property  belonging  to  the 
United  States,  and  situated  within  the  slaveholding 
States ;  the  prohibition  of  slavery  within  the  territories 
of  the  United  States,  before  their  application  for  admis- 
sion as  States,  and  the  regulation  of  the  domestic  slave- 
trade  between  the  slaveholding  States. 

It  is  not  my  purpose  to  extend  this  sketch,  by  giving 
the  history  of  the  conflicts  upon  each  of  these  questions. 
They  have  threatened,  seriously,  the  existence  of  the 
government.  Suffice  it  to  say,  that  the  right  of  each 
State  to  regulate  for  itself  its  domestic  relations,  so  far 
as  this  question  is  concerned,  seems  now  to  be  acknow- 
ledged by  the  statesmen  of  the  country ;  and  that,  hence, 
the  existence  of  slavery  in  a  State  is  no  ground  for  re- 
jecting its  admission  into  the  Union.  The  slave-trade 
in  the  District  of  Columbia  has  been  properly  abolished ; 
and  slavery  therein,  and  in  the  public  forts,  &c.,  is  left, 
as  required  by  good  faith,  to  abide  the  fate  of  the  insti- 
tution in  the  adjacent  States  by  which  they  were  ceded. 
The  right  to  prohibit  slavery  in  the  territories  of  the 
United  States  has  been  denied  by  the  Supreme  Court,  in 


SLAVERY   IN    THE    UNITED    STATES.  CCX1 

a  late  and  most  elaborate  decision.1  And  the  same 
Court  long  since  decided,  that  an  attempt  to  regulate 
the  domestic  slave-trade  between  the  States,  would  give 
virtually  to  Congress  the  right  to  abolish  or  establish 
slavery  in  every  State  of  the  Union.2  That  these  ques- 
tions may  be  allowed,  here  to  rest,  and  be  no  longer  used 
as  hobbies  by  interested  demagogues  to  excite  sectional 
strifes  for  personal  advancement,  should  be  the  sincere 
wish  of  every  true  American  citizen.3 

Having  been  generally  well-treated,  the  slaves  have 
never  exhibited  that  disposition  to  revolt  so  frequently 
seen  in  the  West  Indies.  £To  Maroons  have  infested  our 
mountains;  no  wars  of  the  Maroons  stain  our  annals. 
But  one  insurrection,  worthy  the  name,  has  ever  oc- 
curred, and  that  was  in  Virginia  in  the  year  1800.  The 
plot  (as  all  others  will  be)  was  made  known  by  faithful 
slaves  to  their  masters,  and  effectual  measures  taken  for 
its  suppression.  Several  negroes,  leaders  in  the  rebel- 
lion, were  tried  and  executed.  The  evidence  on  their 
trial  showed  that  they  were  instigated  by  a  white  man, 
and  that  their  whole  plans  manifested  a  weakness  in  con- 
ception unequalled  except  by  the  history  of  the  negro.4 

Cases  of  individual  manumission  have  been  frequent 
in  all  the  States.  In  many  of  them,  the  idle  and  lazy 
habits  of  the  free  negroes,  and  the  continual  agitation 
of  the  question  of  abolition  by  Northern  fanatics,  have 

1  Dred  Scott  v.  Sandford,  19  Howard.     The  other  and  interesting 
question  decided  in  this  case,  whether  a  negro  can  become  a  citizen  of 
the  United  States,  will  be  considered  at  another  place. 

2  Groves  v.  Slaughter,  15  Peters,  449. 

3  M.  Levavasseur  exposes,  in  a  masterly  manner,  the  policy  of  Great 
Britain,  in  fomenting  the  abolition   excitement  in  the  United  States; 
hoping  thereby,  to  retard  their  march  towards  universal  empire  on  the 
American  Continent.     I  would  that  every  citizen  of  the  Union  could 
read  the  remarks  of  this  disinterested  philosopher.     Esclavage  de  la  race 
noire,  p.  31,  et  suiv. 

*  See  the  documents,  respecting  the  insurrection,  published  in  the  Rich- 
mond Recorder,  April  3d,  6th,  and  9th,  1803. 


CCX11  HISTORICAL   SKETCH   OF   SLAVERY. 

induced  the  legislatures  to  prohibit  domestic  emancipa- 
tion, and  thereby  compelled  masters,  thus  disposed,  to 
send  their  slaves  either  to  other  States  or  to  Africa  in 
order  to  receive  their  freedom.  This  influx  of  free 
negroes  has  not  been  acceptable  to  the  non-slaveholding 
States,  especially  the  new  States  of  the  "West,  to  which 
they  were  principally  sent.  Hence  most,  if  not  all  of 
them,  some  by  their  constitution,  and  some  by  legisla- 
tive acts,  have  prohibited  the  introduction  of  free  negroes 
into  their  territory.  Liberia  is  therefore  left  as  the  only 
home  of  the  emancipated  negro.  Africa  gave  birth  to 
the  negro.  Africa  alone  offers  him,  as  a  freeman,  a 
grave. 

The  work  to  which  this  sketch  is  an  introduction,  is 
intended  to  exhibit  the  exact  status  of  the  slave  in  the 
United  States ;  a  repetition  here  upon  these  points 
would  be  inappropriate.  That  their  bondage  has  been 
mild  is  evidenced  by  their  great  and  rapid  increase.  For 
about  333,000  slaves  imported,  there  are  now  more  than 
4,000,000.  Their  physical  development  is  unquestionably 
much  superior  to  that  of  the  negro  in  his  native  country. 
Their  longevity  is  remarkable.  Their  mental  develop- 
ment has  advanced  very  considerably,  still  retaining, 
however,  the  negro  characteristics,  except  in  the  case  of 
the  mulattoes,  where  the  traits  of  the  white  parents  are 
sometimes  developed.  But  above  all,  their  moral  im- 
provement is  most  evident.  Though  still  inclined  to 
superstition,  they  are  frequently  exemplary  Christians, 
and  generally  inclined  to  be  religious.  An  avowed  in- 
fidel is  a  rara  avis  among  the  negroes.  The  statistics  of 
the  different  churches  in  the  slaveholding  States  show 
a  greater  number  of  negroes  converted^  and  admitted 
into  the  Church  than  all  the  conversions  which  have 
crowned  the  missionary  efforts  of  the  world.  The  im- 
proved negro,  however,  exhibits  still  the  moral  weak- 
nesses of  the  native  Ebo;  his  sins,  if  any,  are  theft,  lust, 
and  falsehood. 


SLAVERY   IN   THE    UNITED    STATES.  CCX111 

Both  politically  and  socially  negro  slavery  has  its 
benefits  and  its  evils.  To  the  negro  himself  the  former 
greatly  preponderate.  To  the  owners,  the  masters,  the 
question  is  a  greater  problem,  and  there  is  more  room 
for  honest  differences  of  opinion. 

Politically,  slavery  is  a  conservative  institution.  The 
mass  of  laborers  not  being  recognized  among  citizens, 
every  citizen  feels  that  he  belongs  to  an  elevated  class. 
It  matters  not  that  he  is  no  slaveholder ;  he  is  not  of 
the  inferior  race  ;  he  is  a  freeborn  citizen  ;  he  engages 
in  no  menial  occupation.  The  poorest  meets  the  richest 
as  an  equal ;  sits  at  his  table  with  him  ;  salutes  him  as  a 
neighbor;  meets  him  in  every  public  assembly,  and 
stands  on  the  same  social  platform.  Hence,  there  is  no 
war  of  classes.  There  is  truthfully  republican  equality 
in  the  ruling  class. 

The  laborers  being  slaves,  there  is  not  the  same  dan- 
ger of  conflicts  between  labor  and  capital,  nor  the  same 
liability  to  other  excitements  in  crowded  masses,  which 
end  in  riots.  These  are  unknown  in  pure  slaveholding 
communities. 

Raising  their  own  laborers,  there  is  no  inducement 
for  foreign  immigration  into  slaveholding  communities. 
Their  citizens  imbibe  freedom  with  their  mother's  milk. 

The  leisure  allowed  to  the  slaveholder  gives  him  an 
opportunity  of  informing  himself  upon  current  ques- 
tions of  politics,  and  his  interest  being  identical  with 
his  neighbors,  in  preserving  existing  institutions,  the 
Southern  politician  addresses  always  a  body  of  men 
having  a  common  sentiment,  and  not  to  be  influenced 
to  so  great  an  extent  by  the  "humbugs"  of  demagogues. 
This  is  an  influential  element  in  forming  public  opinion, 
and  acts  thus  conservatively  upon  the  public  men  of  the 
South. 

Official  position  is  not  very  consistent  with  the  interest 
of  the  slaveholder,  and  hence  is  never  sought  for  its 


CCX1V  HISTORICAL   SKETCH    OF   SLAVERY. 

pecuniary  emoluments.  It  is  coveted  only  by  those 
ambitious  of  distinction.  Hence,  the  public  men  of  the 
South  do  not  find  themselves  supplanted  by  unprovided 
aspirants,  but  their  services  are  frequently  gratefully 
received  by  their  constituents.  Born  to  command,  and 
habituated  to  rule,  they  frequently  commend  themselves 
to  the  nation  by  their  firmness,  their  independence,  and 
their  fearlessness.  These  are  important  elements  in  the 
character  of  a  statesman. 

Slavery  is  a  protection  from  pauperism,  the  bane  for 
which  the  wisdom  of  civilized  man  has  not  yet  prepared 
an  antidote.  In  America,  affliction,  old  age,  and  idleness, 
are  the  only  sources  of  pauperism.  Where  the  laborers 
are  slaves  the  master  is  compelled  by  law  to  provide 
against  the  former,  and  is  authorized  to  protect  himself 
against  the  latter.  The  poorhouse,  therefore,  is  almost 
unknown.1 

The  severities  of  winter  and  the  depression  of  finan- 
cial crises,  bring  no  horrors  to  the  laborers  of  the  South. 
The  interest  of  the  master  as  well  as  the  law  of  the 
land  protect  the  negro  against  the  former,  while  a  change 
of  masters  is  the  worst  result  which  can  befall  him  from 
the  latter. 

As  already  intimated,  there  is  perhaps  no  solution  of 
the  great  problem  of  reconciling  the  interests  of  labor 
and  capital,  so  as  to  protect  each  from  the  encroachments 
and  oppressions  of  the  other,  so  simple  and  effective  as 
negro  slavery.  By  making  the  laborer  himself  capital, 
the  conflict  ceases,  and  the  interests  become  identical. 

On  the  other  hand,  a  slaveholding  State  call  never  be 
densely  populated.  The  slaves,  moreover,  occupying 

1  See  a  very  instructive  and  interesting  table,  on  this  subject,  in  the 
Abstract  of  the  Seventh  Census,  p.  28,  by  which  it  appears  that  the 
small  State  of  Rhode  Island  returned  2560  paupers,  as  receiving  support 
during  the  year  ending  1st  June,  1850,  while  in  Georgia  there  were  only 
1036. 


SLAVERY    IN    THE    UNITED    STATES.  CCXV 

the  places  of  free  laborers,  and  three-fifths  only  of  their 
number  being  estimated  under  the  Constitution  of  the 
United  States,  for  representative  purposes,  the  result  is 
inevitable  that  the  slaveholding  States  must  ever  have  a 
smaller  voice,  politically,  than  the  same  territory  would 
command  with  free  labor.  To  this  extent  slavery  de- 
stroys their  political  equality  in  the  nation. 

Another  result  of  a  sparse  population  is,  that  a  perfect 
system  of  thorough  common  school  education  is  almost 
an  impossibility.  Extensive  plantations,  occupied  by 
slaves  only,  independent  of  the  exhausting  crops  culti- 
vated and  annually  adding  to  barren  fields,  render  a  per- 
fect system  of  common  schools  impossible. 

In  a  slaveholding  State,  the  greatest  evidence  of  wealth 
in  the  planter  is  the  number  of  his  slaves.  The  most 
desirable  property  for  a  remunerative  income,  is  slaves. 
The  best  property  to  leave  to  his  children,  and  from 
which  they  will  part  with  greatest  reluctance,  is  slaves. 
Hence,  the  planter  invests  his  surplus  income  in  slaves. 
The  natural  result  is,  that  lands  are  a  secondary  consi- 
deration. Ko  surplus  is  left  for  their  improvement.  The 
homestead  is  valued  only  so  long  as  the  adjacent  lands 
are  profitable  for  cultivation.  The  planter  himself, 
having  no  local  attachments,  his  children  inherit  none. 
On  the  contrary,  he  encourages  in  them  a  disposition  to 
seek  new  lands.  His  valuable  property  (his  slaves)  are 
easily  removed  to  fresh  lands ;  much  more  easily  than  to 
bring  the  fertilizing  materials  to  the  old.  The  result  is 
that  they,  as  a  class,  are  never  settled.  Such  a  popula- 
tion is  almost  nomadic.  It  is  useless  to  seek  to  excite 
patriotic  emotions  in  behalf  of  the  land  of  birth,  when 
self-interest  speaks  so  loudly.  On  the  other  hand,  where 
no  slavery  exists,  and  the  planter's  surplus  cannot  be  in- 
vested in  laborers,  it  is  appropriated  to  the  improvement 
or  extension  of  his  farm,  the  beautifying  of  the  home- 
stead where  his  fathers  are  buried,  and  where  he  hopes 


CCXVI  HISTORICAL  SKETCH   OF  SLAVERY. 

to  lie.  Of  course  we  speak  of  classes,  not  of  individuals. 
The  result  is  the  withdrawal  of  all  investments  from  the 
improvement  of  the  lands,  another  deleterious  effect  of 
slavery  to  the  State. 

It  has  been  asserted  that  slave  labor  is  exhausting  to 
lands.  So  far  as  the  cause  already  alluded  to  withdraws 
the  planter  from  the  improvement  of  his  land,  it  is  true. 
But  the  more  satisfactory  explanation  of  the  exhausting 
cultivation  of  Southern  lands,  is  the  nature  of  the  crops 
planted.  Being  "  clean"  crops,  the  exposure  of  the 
naked  ploughed  lands  to  the  long-continued  heat  of  the 
summer  sun,  would  be  followed  by  sterility,  partial  or 
complete,  whether  free  or  slave  labor  was  used  in  their 
cultivation. 

It  has  often  been  asserted  that  free  labor  is  cheaper 
than  slave,  and  evidence  has  been  industriously  sought 
in  the  British  colonies  to  show  that  the  labor  of  the 
emancipated  negro  there,  is  cheaper  than  that  of  the 
slave.1  In  dense  populations,  where  the  question  is  labor 
or  hunger,  the  assertion  is  generally  true ;  for  the  amount 
invested,  either  in  the  purchase  or  rearing  of  the  laborer, 
is  necessarily  that  much  more  than  the  cost  of  food  and 
raiment,  which  both  free  and  bond  must  have,  and  which 
is  all  that,  under  such  circumstances,  competition  and 
necessity  leave  to  the  free  laborer.  If  either  one  of  two 
facts  existed,  the  assertion  might  be  true  of  the  Southern 
slaveholding  States,  viz.,  the  successful  introduction  of  a 
dense  white  population  to  take  the  place  of  the  slaves ; 
or,  the  introduction  into  the  negro  nature  of  some  prin- 
ciple to  counteract  that  sloth  which  abhors  work,  and 
that  absence  of  pride  and  principle  which  prefers  theft 
and  beggary  to  industry  and  thrift.  To  the  possibility 
of  the  former  two  great  obstacles  arise,  in  the  first  place, 
climate  and  disease,  which  bring  death  to  the  Saxon, 
and  health  and  immunity  to  the  African ;  in  the  second, 

1  See  Gurney's  West  Indies. 


SLAVERY   IN    THE    UNITED    STATES.  CCXV11 

the  impossibility  of  cultivating  extensively  the  staple 
productions  of  the  South,  rice,  sugar,  cotton,  and  to- 
bacco, except  by  associated  labor,  not  subject  to  the  con- 
tingencies of  "strikes"  or  caprices. 

The  possibility  of  the  latter  contingency  is  shown  not 
to  exist,  by  the  examples  of  the  negro  character  wherever 
and  whenever  emancipated.  The  free  negroes  of  the 
United  States,  North  and  South,  of  the  West  Indies,  and 
of  Liberia,  show  an  indisposition  to  labor,  except  from 
absolute  necessity,  which  manifests  a  characteristic  of 
the  race.1  The  introduction  of  Coolies,  by  both  Great 
Britain  and  France,  into  their  colonies,  is  upon  the 
avowed  allegation  of  the  idleness  of  the  negro. 

While,  then,  the  general  proposition,  that  free  labor  is 
cheaper  than  slave,  may  be  true,  it  would  seem  that 
slave  labor  is  the  only  effectual,  and  therefore  cheapest, 
labor  which  the  Southern  States  can  use  in  the  produc- 
tion of  their  staples.  Experience,  at  the  South,  has 
shown  this  to  be  true  in  the  building  of  railroads.  Slave 
labor  must  be  used  successfully  on  uniform  work,  re- 
quiring physical  strength,  without  judgment  or  discre- 
tion. Wherever  such  work  in  large  quantity  can  be 
found  in  the  Southern  climate,  slave  labor  is  the  cheapest 
that  can  be  applied. 

As  a  social  relation,  negro  slavery  has  its  benefits  and 
its  evils.  That  the  slave  is  incorporated  into  and  be- 
comes a  part  of  the  family,  that  a  tie  is  thus  formed 
between  the  master  and  slave,  almost  unknown  to  the 
relation  of  master  and  hireling,  that  in  consequence 
even  the  young  spendthrift  experiences  a  pang  in  sun- 
dering a  relation  he  has  recognized  from  his  infancy, 
that  the  old  and  infirm  are  thus  cared  for,  and  the  young 

1  Antigua  is  frequently  referred  to  as  an  example  of  voluntary  free 
labor  by  negroes.  The  island  is  small,  the  inhabitants  few ;  but  at  the 
same  time,  fully  occupying  the  whole  territory.  The  whites  have  been 
wise  and  humane,  and  the  experiment,  on  this  small  scale,  has  been  more 
successful  than  elsewhere. 


CCXV111  HISTORICAL    SKETCH    OF   SLAVERY. 

protected  and  reared,  are  indisputable  facts.  Interest 
joins  with  affection  in  promoting  this  unity  of  feeling. 
To  the  negro,  it  insures  food,  fuel,  and  clothing,  medi- 
cal attendance,  and  in  most  cases  religious  instruction. 
The  young  child  is  seldom  removed  from  the  parent's 
protection,  and  beyond  doubt,  the  institution  prevents 
the  separation  of  families,  to  an  extent  unknown  among 
the  laboring  poor  of  the  world.1  It  provides  him  with 
a  protector,  whose  interest  and  feeling  combine  in  de- 
manding such  protection. 

To  the  master,  it  gives  a  servant  whose  interests  are 
identical  with  his  own,  who  has  indeed  no  other  interest, 
except  the  gratification  of  a  few  animal  passions,  for 
which  purpose  he  considers  it  no  robbery  to  purloin  his 
master's  goods. 

In  short,  the  Southern  slavery  is  a  patriarchal,  social 
system.  The  master  is  the  head  of  his  family.  Next 
to  wife  and  children,  he  cares  for  his  slaves.  He  avenges 
their  injuries,  protects  their  persons,  provides  for  their 
wants,  and  guides  their  labors.  In  return,  he  is  revered 
and  held  as  protector  and  master.  Nine-tenths  of  the 
Southern  masters  would  be  defended  by  their  slaves,  at 
the  peril  of  their  own  lives. 

The  evils  of  the  system  are  equally  unquestionable. 
That  it  engenders  in  the  youth  of  the  South  that  over- 
bearing and  despotic  spirit,  ascribed  to  the  relation  by 
Mr.  Jefferson,  is  not  true  to  the  extent  he  alleges.  The 
fact,  that  Northern  men  are  sometimes  the  most  exact- 
ing masters,  is  well  known.  The  reason  of  this  is  that 
they  expect  from  the  slave  the  amount  of  work  which 
they  have  received  from  a  hireling.  This  he  never  will 
do,  and  the  Southern-bred  master  does  not  look  for  it. 
The  security  of  his  place,  as  well  as  the  indolence  of  his 

1  On  my  father's  plantation,  an  aged  negro  woman  could  call  together 
more  than  one  hundred  of  her  lineal  descendants.  I  saw  this  old  negro 
dance  at  the  wedding  of  her  great  granddaughter.  She  did  no  labor 
for  my  father  for  more  than  forty  years  before  her  death. 


SLAVERY   IN   THE    UNITED    STATES.  CCX1X 

nature,  do  not  furnish  the  necessary  stimulus.  It  is  true, 
however,  that  the  young  man  of  the  South  is  accustomed 
to  rule,  and  even  the  son  of  a  poor  man,  without  a  slave, 
to  a  certain  extent,  commands  obedience  from  the  negro 
population.  The  result  is  a  spirit  of  independence, 
which  brooks  not  opposition.  Within  a  proper  limit 
this  is  not  an  evil.  Indulgence  makes  it  a  sin. 

A  good  consequence  of  this  is,  a  more  perfect  equality 
in  social  life,  among  the  rich  and  poor,  than  can  be  had 
where  the  menial  servants  are  of  the  same  color.  An 
evil  consequence  is  a  too  great  sensitiveness  on  questions 
of  personal  honor,  and  a  corresponding  disposition  to 
settle  them  "by  wager  of  battle." 

An  evil  attributed  to  slavery,  and  frequently  alluded 
to,  is  the  want  of  chastity  in  female  slaves,  and  a  cor- 
responding immorality  in  the  white  males.  To  a  certain 
extent  this  is  true ;  and  to  the  extent  that  the  slave  is 
under  the  control  and  subject  to  the  order  of  the  master, 
the  condition  of  slavery  is  responsible. 

Every  well-informed  person  at  the  South,  however, 
knows  that  the  exercise  of  such  power  for  such  a  pur- 
pose is  almost  unknown.  The  prevalence  of  the  evil  is 
attributable  to  other  causes.  The  most  prominent  of 
these  is  the  natural  lewdness  of  the  negro.  It  is  not 
the  consequence  of  slavery.  The  free  negro  in  Africa, 
in  the  West  Indies,  in  America,  exhibits  the  same  dis- 
position, perhaps  not  to  the  same  degree  when  living  in 
a  Christian  community.1  Another  causers  the  fact  that 
the  negress  knows  that  the  offspring  of  such  intercourse, 
the  mulatto,  having  greater  intelligence,  and  being  in- 

1  The  ratio  of  mulattoes  to  blacks,  among  the  free  colored  population 
of  the  Northern  States,  shows  this  to  be  true  among  them.  In  Maine, 
51;  New  Hampshire,  54;  Vermont,  40;  Massachusetts,  34;  Connecticut, 
30 ;  and  Rhode  Island,  24,  out  of  every  100  were  mulattoes,  in  1850- 
See  Mortality  Statistics  of  the  Census  of  1850,  p.  35.  Bowen  alludes  to  this 
vice  in  Liberia,  but  hopes  it  is  not  so  prevalent,  "  if  report  may  be  trusted, 
as  with  the  people  of  Sierra  Leone,  or  of  France."  Central  Africa,  p.  32. 


CCXX  HISTORICAL   SKETCH   OF   SLAVERY. 

deed  a  superior  race,  has  a  better  opportunity  of  enjoy- 
ing the  privileges  of  domestics ;  in  other  words,  is  elevated 
by  the  mixture  of  blood.  Her  sin  does  not  entail  mis 
fortune  but  good  fortune  on  her  children.  Nor  does  she 
lose  any  social  position  even  with  her  own  race.  Under 
such  circumstances  the  prevalence  of  this  sin  is  not  sur- 
prising. 

It  is  undoubtedly  true,  that  from  this  cause  the  poor 
white  females  of  the  slaveholding  States  are  not  subject 
to  as  great  temptations  and  importunities  as  they  would 
be  under  other  circumstances.  That  the  ignorant  poor, 
under  the  heating  Southern  sun,  would  compare  unfavor- 
ably with  those  of  colder  climates  in  this  particular,  ex- 
cept for  this  institution,  is  manifested  by  the  immorality 
of  some  ignorant  districts  in  slaveholding  States,  where 
but  few  negroes  are  found.  How  far  such  a  result 
counterbalances  the  evil  admitted,  can  be  weighed  only 
by  the  great  Arbiter  of  the  universe. 

A  social  evil  of  no  small  magnitude,  arising  from  this 
condition,  is  the  imbibing  by  children  of  the  supersti- 
tions, fears,  and  habits,  of  the  negroes,  with  whom  they 
are  necessarily,  to  some  extent,  reared.  The  negro  is 
not  yet  more  than  semi-civilized.  The  marvellous  and 
the  unearthly,  ghosts,  witches,  and  charmings,  are  min- 
gled even  with  his  religion.  Great  caution  is  necessary, 
on  the  part  of  the  Southern  mother,  to  protect  the  young 
child  from  such  influences. 

The  inability  of  the  slave  parents  to  control  and  govern 
their  own  children  from  the  intervention  of  another 
power,  the  master's,  has  been  considered  an  evil  of  this 
social  system.  Theoretically  it  is  ;  practically  it  is  not, 
for  two  reasons :  first,  the  master  never  interferes  with 
but  rather  encourages  such  government ;  it  is  an  aid  to 
him.  And,  second,  unless  the  child  in  some  way  inter- 
feres with  the  comfort  or  wishes  of  the  parent,  the  negro 
has  no  disposition  to  control  his  waywardness  or  his 


SLAVERY   IN   THE    UNITED    STATES.  CCXX1 

That  the  marriage  relation  between  slaves  is  not  re- 
cognized or  protected  by  the  law,  is  another  evil  to  the 
negro  attending  the  system,  and  to  a  qualified  extent  it 
is  an  evil.  In  practice,  public  opinion  protects  the  rela- 
tion. The  unfeeling  separation  of  husband  and  wife,  is 
a  rare  occurrence.  It  never  happens  when  both  belong 
to  the  same  master.  To  regulate  properly  this  relation 
by  legislation,  so  as  to  prevent  inhumanity  on  the  one 
hand,  and  not  to  bind  too  much  the  owner's  power  of 
selling  an  unworthy  or  unruly  slave  on  the  other,  requires 
great  sagacity  and  prudence. 

It  would  require  a  prophetic  vision  to  foretell  the 
future  of  the  American  negro  slaves.  Emancipation,  in 
their  present  location,  can  never  be  peacefully  effected. 
Until  the  white  race  of  the  South  is  exterminated  or 
driven  off,  it  can  never  be  forcibly  effected.  Amalga- 
mation, to  any  great  extent,  is  a  moral  impossibility. 
Colonization  on  the  coast  of  Africa  could  be  effected 
only  at  immense  cost,  and  at  the  sacrifice  of  the  lives  of 
at  least  one-fourth  of  the  emigrants.  So  long  as  climate 
and  disease,  and  the  profitable  planting  of  cotton,  rice, 
tobacco,  and  cane,  make  the  negro  the  only  laborer  in- 
habiting safely  our  Southern  savannas  and  prairies, 
just  so  long  will  he  remain  a  slave  to  the  white  man. 
Whenever  the  white  laborer  can  successfully  compete 
with  him  in  these  productions  and  occupy  this  soil,  the 
negro  will  either  be  driven  slowly  through  the  Isthmus, 
to  become  amalgamated  with  the  races  of  South  America, 
or  he  will  fall  a  victim  to  disease  and  neglect,  begging 
bread  at  the  white  man's  door. 


CHAPTER  XVIII. 

AFRICAN   COLONIZATION. 

Two  attempts  have  been  made  to  colonize  the  negro 
in  Africa.  During  the  American  war  of  revolution, 
Great  Britain,  to  induce  the  slaves  to  join  her  standard, 
promised  to  all  such  freedom.  At  the  close  of  the  war, 
Biich  negroes  as  had  accepted  the  offer  were  carried 
temporarily  to  Nova  Scotia,  and  finally  colonized  at 
Sierra  Leone,  on  the  coast  of  Africa.  To  these  have 
been  added  large  numbers  of  captured  Africans  found 
on  board  of  slavers,  which  have  fallen  into  the  hands  of 
British  cruisers.  No  special  attention  has  been  aroused 
in  the  mother  country,  among  the  benevolent  and  Chris- 
tians, to  this  colony ;  and  so  far  as  the  same  maybe  con- 
sidered as  an  effort  to  evidence  the  capacity  of  the  negro 
for  self-elevation,  it  is  an  admitted  failure.  "Without 
dwelling  longer  on  its  history,  we  turn  to  Liberia,  where 
everything  has  been  done  which  philanthropy  or  religion 
could  suggest,  to  develop  to  its  fullest  capacity  the  moral 
and  intellectual  growth  of  the  negro. 

Satisfied  that  the  only  condition  in  which  the  white 
and  black  races  could  live  together,  to  their  mutual  ad- 
vantage, was  that  of  slavery  to  the  latter,  and  looking 
to  Africa,  the  birthplace  of  the  negro,  for  a  home  and 
a  grave,  the  friends  of  the  negro  in  the  United  States 
inaugurated  an  effort,  in  1816,  to  test  his  capacity  for  a 
self-sustaining  civilization  upon  its  shores.  The  philan- 
thropists of  the  entire  Union  joined  heartily  in  this  en- 


AFRICAN    COLONIZATION.  CCXX111 

terprise,  some  of  the  noblest  names  of  the  Republic 
being  recorded  as  its  earliest  friends.  The  legislatures 
of  the  States,  North  and  South,  with  great  unanimity, 
approved  of  the  movement,  and  earnest,  zealous,  active 
friends  have  devoted  time,  talents,  wealth,  health,  and 
life,  to  insure  its  success.  Never  in  the  history  of  the 
world  has  a  colony  been  planted  from  purer  philanthropy, 
nor  cherished  with  greater  munificence,  nor  followed 
by  more  ardent  prayers.  Liberia  is  the  child  of  philan- 
thropy and  religion.  The  sympathies  of  the  civilized 
world  have  been  with  her.  She  has  had  no  human  ene- 
mies, save  the  savages  of  her  own  race,  surrounding  her 
borders,  and  a  few  fanatical  abolitionists  in  our  own 
country. 

It  is  not  necessary  to  our  purpose  to  trace  minutely 
its  history.  A  few  facts  will  present  its  inception  and 
its  present  position.  The  first  emigrants  were  sent  out 
in  1820.  In  April,  1822,  the  American  flag  was  first 
hoisted  at  the  spot  now  occupied  by  Monrovia,  the  capi- 
tal of  the  Republic.  From  that  date  to  1847,  white 
Governors,  appointed  by  the  American  Colonization 
Society,  presided  over  its  destinies.  During  that  year 
steps  were  taken  to  declare  its  independence,  and  on 
the  3d  of  January,  1848,  Governor  Roberts  was  inaugu- 
rated President  of  the  Republic.  From  that  time  to 
the  present  it  has  maintained  its  separate  existence, 
although  the  Colonization  Society  has  continued,  not 
only  its  friendly  advice  and  sympathy,  but  has  annually 
sent  out,  at  its  own  expense,  large  numbers  of  emigrants, 
besides  frequent  direct  contributions  of  money  for  vari- 
ous purposes.  The  British  Government  presented  to 
the  young  Republic  "a  man-of-war."  The  French 
Government  presented  her  a  supply  of  arms.  Their 
and  the  American  cruisers  have  been  ever  ready  to  ex- 
tend to  her  their  assistance  and  protection.1  Her  entire 

1  Africa  and  the  American  Flag,  by  Com.  Foote,  181,  182. 


CCXX1V  HISTORICAL   SKETCH   OF   SLAVERY. 

territory,  extending  along  the  coast  seven  hundred  miles, 
has  been  purchased  and  paid  for  by  the  contributions  of 
friends.  These  and  similar  facts  only  show  the  favora- 
ble circumstances  which  have  attended  the  new  Re- 
public. 

Too  much  should  not  be  expected  from  an  infant 
colony ;  but  remembering  that  these  emigrants,  in  the 
main,  represent  the  most  worthy  and  most  energetic  of 
the  negro  and  mixed  race  of  the  United  States ;  that 
they  have  annually  received  a  fresh  supply  of  similar 
emigrants  from  the  States ;  that  they  have  been  fostered 
as  before  stated ;  and  that  thirty-seven  years  have  elapsed 
since  the  planting  of  the  colony,  we  are  permitted  to 
look,  to  some  extent,  for  the  evidence  of  their  capacity 
for  a  self-sustaining  civilization. 

From  this  view,  we  will  not  say  that  the  effort  is  a 
failure.  The  prospect  of  the  negro  being  used  as  the 
instrument  of  civilizing  his  birthplace ;  and  that,  torn 
away  a  savage  from  his  native  land  by  the  cupidity  and 
avarice  of  his  fellow-man,  he  shall  be  restored,  a  Chris- 
tian, by  the  philanthropy  of  his  brother  man,  has  in  it 
something  of  that  sublimity  which  would  evidence  the 
purpose  of  God.  We  should  be  slow  to  disbelieve  such 
a  purpose,  though  "  his  ways  are  not  as  our  ways." 

In  1845,  a  census  of  the  colony,  with  several  interest- 
ing statistical  tables,  was  published.  From  these  we 
learn  that  the  total  number  of  emigrants  sent  out  up  to 
that  date  was  4454.  Of  these  there  were  left  in  the 
colony  only  1736.  Of  the  remainder,  2198  had  died,  and 
520  had  removed.  The  Thirty-fifth  Annual  Report  of 
the  Society  shows  that,  in  1851,  the  number  of  emigrants 
sent  out  had  increased  to  8636.  In  1 852  and  1853,  there 
were  sent  out  1449  more,  making  10,085  emigrants  to 
that  date.  Estimating  700  for  the  four  last  years  each, 
would  give  us  12,885.  How  many  of  these  survive  and 
remain  in  the  colony,  I  have  no  means  of  deciding.  The 


AFRICAN   COLONIZATION.  CCXXV 

total  civilized  population  of  the  Republic  does  not  now 
amount  to  exceeding  8000  souls.1  The  increase  of 
population  does  not  show  physical  improvements.  I 
am  aware  of  the  numbers  who  fall  victims  to  the  accli- 
mating fever,  greater,  I  doubt  not,  than  publications 
admit.  I  am  aware  also  of  Dr.  Lugenbeel's  account  of 
the  diseases  of  the  colony,  the  most  troublesome  and 
fatal  of  which,  according  to  him,  have  their  origin  in  a 
want  of  cleanliness,  precisely  what  one  would  fear,  at 
all  acquainted  with  negro  character.2 

Another  striking  fact  to  be  deduced  from  the  tables 
alluded  to,  is  the  congregation  of  all  the  emigrants  in 
the  towns  and  villages,  and  their  adherence  to  traffic, 
rather  than  agricultural  or  mechanical  employments.3 
The  love  of  a  negro  for  a  town,  and  his  aversion  to 
regular  labor,  which  are  proverbial,4  he  seems  to  retain  in 
Liberia,  where,  with  a  rich  and  productive  soil,  agricul- 
ture seems  confined  to  the  natives.  Hence,  the  current 
report  of  the  emigrants  holding  slaves,  so  often  contra- 
dicted.5 That  many  of  the  emigrants  have  amassed 
considerable  property  by  their  industry,  is  a  gratifying 
fact;  although  it  would  be  more  satisfactory  did  we 

1  Commander  Foote,U.  S.  N.,  estimates  them  at  7500,  in  1854.  Africa 
and  the  American  Flag,  198.     Bowen  estimates  them,  from  the  best  au- 
thorities, at  7792,  in  1857.     Central  Africa,  35. 

2  Sketches  of  Liberia,  ch.  vii  (published  by  Am.  Col.  Soc.). 

3  Bowen  estimates  those  devoted  to  agriculture,  at  8  per  cent. ;  mecha- 
nics, 5  per  cent.,  p.  35. 

4  Mr.  Gerrit  Smith  gives  a  striking  illustration  of  this  fact  in  a  letter, 
stating  the  number  of  free  negroes  to  whom  he  has  donated  farms,  in 
Western  New  York,  and  the  very  small  number  who  have  cultivated 
them. 

6  Dr.  Lugenbeel  says,  "  that  comparatively  few  of  the  present  citizens 
of  Liberia  are  regularly  and  systematically  engaged  in  the  cultivation  of 
the  soil."  Again,  "  A  more  regular,  systematic,  and  persevering  course 
of  farming  operations  must  be  introduced."  The  italics  are  his  own. 
Foote  says,  "  The  want  of  agricultural  industry  has  been  the  difficulty 
•with  the  Liberians."  194.  Bowen  says,  "A  majority  of  the  colonists 
appear  to  be,  more  or  less,  engaged  in  traffic."  p.  35. 
o 


CCXXV1  HISTORICAL   SKETCH   OF   SLAVERY. 

know  how  much  they  carried  with  them,  and  also  how 
many  of  these  successful  traders  were  pure  negroes. 
That  there  are  very  many  idlers  and  some  beggars  in  the 
Republic,  is  an  admitted  fact.1 

It  is  not  easy  to  arrive  at  a  satisfactory  opinion  as  to 
the  intellectual  progress  of  the  Liberians.  Their  Consti- 
tution was  framed,  to  a  great  extent,  for  them.3  The 
addresses  of  Governor  Roberts  (a  mulatto),  and  the  pro- 
ductions of  the  pens  of  others,  indicate  thinking  minds, 
and  some  considerable  education.  These,  however,  were 
trained  in  America.  In  the  census  referred  to,  the  name 
of  every  child  born  in  the  colony  is  given,  and  the  ex- 
tent of  the  education  of  each.  The  highest  specified 
was,  "can  read  and  write,"  though  many  had  reached 
twenty  years  of  age.  Not  one  is  reported  as  having  a 
liberal  or  classical  education.  It  does  not  speak  well  for 
the  appreciation  of  education  by  the  Liberians,  that  every 
school  in  the  Republic  is  maintained  by  the  charity  of 
religious  sects  in  the  United  States  ;3  nor  the  additional 
fact,  that  the  "classical  school,"  established  by  the  Pres- 
byterians, the  only  one  in  the  Republic,  numbered,  in 
1852,  only  eight  scholars,  out  of  the  entire  population. 

As  to  the  moral  progress  of  the  Liberians,  we  cannot 

1  "  It  is  said  that  the  young  people  are  too  much  addicted  to  idleness.'' 
Bowen's  Central  Africa,  33  (1857).     u  Indolence  is  the  only  just  reason 
why  beef,  milk,  and  butter  are  not  abundant  in  this  country,  where  they 
are  now  almost  unknown."  p.  45. 

"Some  are  rich,  some  are  doing  well,  and  some  are  just  able  to  get 
along  in  the  world ;  others  are  poor,  and  there  are  those  that  beg." 
"We  see  farms  and  lots  of  many  grown  over  with  bushes,  and  not  a  single 
potato  planted  in  them.  In  the  very  countenance  of  some,  we  see  indus 
try  and  enterprise  depicted,  but  with  others,  we  discover  the  reverse." 
Fuller  and  Janifer's  Reports  to  Maryland  Col.  Soc.  "  If  they  exerted 
themselves  a  little  more,  and  depended  not  so  much  on  the  natives,  they 
would  have  no  complaints  to  make."  Ibid. 

2  Report  of  R.  R.  Gurley,  p.  21. 

3  Bowen's  Central  Africa,  p.  32  (1857);  School  Reports,  attached  to 
census  of  Africa's  Redemption,  203. 


AFRICAN   COLONIZATION.  CCXXV11 

speak  with  any  degree  of  certainty.  They  seem  to  re- 
tain many  of  the  characteristics  of  the  negroes  in  the 
United  States.  Foote  speaks  of  their  disposition  to 
deal  in  superstition  and  the  supernatural.1  Their  reli- 
gious teaching  is  almost  exclusively  confined  to  the 
labors  of  missionaries,  sent  from  and  supported  by 
American  Christians.  From  the  tables  accompanying 
the  census,  above  referred  to,  it  appears  that  the  crimes 
to  which  they  are  addicted  in  Liberia,  partake  much  of 
the  same  character  with  those  committed  by  the  negroes 
of  America.  Of  373  reported  trials  for  offences,  308 ' 
were  for  larceny  of  different  degrees.  Kidnapping,  riot- 
ing, rape,  and  murder,  complete  the  list.  Lust,  the  be- 
setting sin  of  the  negro,  seems  to  accompany  him  to 
Liberia,  and  a  want  of  chastity  in  the  female.2  The 
proportion  of  the  population,  who  are  professing  Chris- 
tians, is  perhaps  larger  than  that  of  the  slaves  in  the 
United  States. 

The  emigrants  have  waged  several  wars  successfully 
against  neighboring  tribes,  with  great  disparity  of  num- 
bers. They  have  rendered  some  efficient  service  in  re- 
pressing the  slave-trade  along  their  coasts.3  They  have 
not  been  guilty  of  the  excesses,  the  turbulence,  nor  the 
restlessness  of  the  emancipated  negroes  of  the  West 
Indies.  All  these  facts  speak  in  favor  of  their  civiliza- 
tion. How  far  they  may  be  accounted  for,  on  other 
grounds,  it  is  unnecessary  to  discuss.  Let  us  hope  that 
they  indicate  a  developing  civilization.  For  the  present, 
African  colonization  is  an  experiment.  Its  disinterested 
and  not  too  zealous  friends,  are  not  prepared  to  announce 
its  success.  Foote  says,  "  In  devising  measures  for  the 
benefit  of  Liberia,  one  thing  was  pre-eminently  to  be 

1  Africa  and  the  American  Flag,  197. 

2  Bowen's  Central  Africa,  p.  32. 

3  The  abolitionists  deny  this,  and  say  that  the  trade  was  carried  on  in 
the  Colony.     No  reliance,  however,  can  be  placed  on  these  statements. 
See  Slavery  and  Anti-Slavery,  by  Goodell,  352,  and  note. 


CCXXV111  HISTORICAL  SKETCH   OF   SLAVERY. 

kept  in  view,  which  was,  that  the  people  be  prevented 
from  sinking  back  to  become  mere  Africans."  Dr. 
Lugenbeel,  who  resided  long  in  Liberia,  speaks  with 
hesitation  of  its  future :  "I  am  quite  satisfied  that  if  the 
Republic  of  Liberia  shall  ingloriously  fall,  and  her  in- 
stitutions be  demolished,  the  result  will  indubitably  ex- 
hibit the  melancholy  fact,  that  the  maintenance  of  an 
independent  government,  by  the  colored  race,  is  at  least 
a  subject  of  doubtful  practicability." 

I  have  referred  only  to  a  few  facts  admitted  by  the 
best  friends  of  colonization,  which  seem  to  indicate  that 
the  negro  has  undergone  no  radical  change  by  removal 
to  his  native  shores.  The  danger  is,  that  as  the  genera- 
tion of  emigrants  becomes  extinct,  their  descendants 
will  relapse  gradually  into  the  heathenism  and  barbarism 
which  surround  them.  So  long  as  annual  exportations 
from  the  United  States,  of  the  most  energetic  and  intel- 
ligent of  our  free  colored  population  continue,  an  appear- 
ance of  activity  and  life  will  be  exhibited.  But  to  prove 
the  capacity  of  the  negro  for  a  self-evolving  civilization, 
he  must  be  left  to  himself  for  a  few  generations.  Good 
men  and  wise  men  differ  as  to  the  final  result.  I  must 
confess  my  own  incredulity. 


THE 


LAW  OF  NEGRO  SLAVERY, 


THE 


LAW  OF  NEGRO  SLAVERY. 


I  PROPOSE  to  consider  the  Law  of  Negro  Slavery 
as  it  exists  in  the  United  States  of  America ;  to  ex- 
amine into  its  origin,  its  foundation,  and  its  present 
condition ;  to  note  the  striking  differences  in  the 
legislation  of  the  various  slaveholding  States,  and 
occasionally  to  suggest  amendments  to  the  existing 
laws. 


CHAPTER  I. 

WHAT   IS   SLAVERY,    AND   ITS   FOUNDATION   IN   THE 
NATURAL   LAW. 

§  1.  Absolute  or  Pure  Slavery  js  the  condition  of 
that  individual,  over  whose  life,  liberty,  and  pro- 
perty another  has  the  unlimited  control.  The  for- 
rnftr  is  tfjTnftd  fl.  sln.ve;  fhf>  Utter  i« 


Slavery,  in  its  more  usual  and  limited  signifi- 
cation, is  applied  to  all  involuntary  servitude,  which 


4  LAW   OF   NEGRO   SLAVERY. 

is  not  inflicted  as  a  punishment  for  crime.1  The 
former  exists  at  this  day  in  none  of  the  civilized 
nations  of  the  world ;  the  latter  has,  at  some  time, 
been  incorporated  into  the  social  system  of  every 
nation  whose  history  has  been  deemed  worthy  of 
record.2  In  the  former  condition  the  slave  loses  all 

personality,  and  is  viewed  merely  as  property ;  in 
the  latter,  while  treated  under  the  general  class  of 

i  things,  he  possesses  various  rights  as  a  person,  and 

'is  treated  as  such  by  the  law.3 

§  2.  A  preliminary  inquiry  presents  itself,  and 
demands  our  first  consideration,  viz. :  By  what  law 
or  authority  does  this  dominion  of  one  man  over 
another  exist  ?  by  the  law  of  nature,  or  by  munici- 
pal law  ?  And  a  satisfactory  reply  to  this  inquiry 
is  absolutely  necessary  to  the  true  resolution  of  many 

1  The  definitions  of  slavery  have  been  various.     According  to 

the  Institutes  it  was  "  constitutio  juris  gentium,  qua  quis  domino 

alieno,  contra  naturam  subjicitur."     This  definition  was  adopted 

verbatim  from  the  Stoic  philosophers.     See  Heinec.  Opera  V,  p. 

"20. 

Heineccius  defines  slavery  as  follows :  a  Servi  sunt  personse ; 
qui  ad  dominorum  utilitatem  operis  suis,  vel  pro  certa  mercede 
alimentisque,  vel  pro  solis  alimentis  promovendam  obstricti  sunt." 
Jus  Nat.  et  Gent.  cap.  iv,  §  77. 

The  Civil  Code  of  Louisiana  defines  a  slave  to  be  "  one  who  is 
in  the  power  of  a  master,  to  whom  he  belongs."  Arts.  35  and 
173. 

3  See  Preliminary  Sketch,  &c.  • 

8  Among  the  Romans,  the  slave  was  classed  as  a  thing :  Res. 
He  was  "  Homo  sed  non  persona."  Heinec.  Elem.  Jur.  Lib.  I, 
§  75.  He  was  considered  "pro  nullo  et  mortuo,  quia  nee  statu 
familia3  nee  civitatis  nee  libertatis  gaudet."  Ibid.  §  77.  See  also 
Kaufmann's  Mackeldey;  State  v.  Edmund,  4  Dev.  340;  Neal  v. 
Farmer,  9  On.  Rep.  582. 


WHAT   IS   SLAVERY.  5 

of  the  perplexing  questions  which  arise  from  that 
relation.  In  the  laws  of  Henry  I,  we  find  the  de- 
claration, "  servi  alii  natura,  alii  facto,  alii  empcione, 
alii  redempcione,  alii  sua  vel  alterius  dacione  servi."1 
The  Institutes,  on  the  contrary,  declared  all  slavery 
to  be  "  contra  naturam,"  and  this  declaration,  which 
might  be  true  of  a  system  which  ignored  entirely 
the  existence  of  the  slave  as  a  person,  has  been  al- 
most universally  adopted  by  courts  and  jurists.2 
Upon  the  investigation  of  the  truth  of  this  proposi- 
tion we  propose  to  enter. 

§  3.  That  slavery  is  contrary  to  the  law  of  nature,  "^ 
has  been  so  confidently  and  so  often  asserted,  that   / 
slaveholders   themselves  have  most  generally  per-  S 
mitted  their  own  minds  to  acknowledge  its  truth  / 
unquestioned.)  QHence,  even  learned  judges  in  slave-, 
holding  States,  adopting  the  language  of  Lord  Mans-    f 
field,  in  Somerset's  case,  have  announced  gravely,  / 
that  slavery  being  contrary  to  the  law  of  nature/ 
can  exist  only  by  force  of  positive  law^j   The  course 
of  reasoning,  by  which  this  conclusion  is  attained,  is 
very  much  this :  That  in  a  state  of  nature  all  men 
are  free.      That  one  man  is  at  birth  entitled  by 
nature  to  no  higher  rights  or  privileges  than  another, 
nor  does  nature  specify  any  particular  time  or  cir- 
cumstances under  which  the  one  shall  begin  to  rule 
and  the  other  to  obey.  Hence,  by  the  law  of  nature, 

1  Ancient  Laws  and  Institutes  of  England ;  Leges  Henr.  I,  ch. 
Ixxvi,  §  3. 

a  For  the  modification  or  explanation  of  this  expression  in  the 
Institutes,  see  post :  §  12. 

8  Case  of  the  Antelope,  10  Wheat.  120;  State  v.  Jones,  Walker's 
Miss.  Rep.  83. 


6  LAW  OF   NEGRO   SLAVERY. 

no  man  is  the  slave  of  another,  and  hence  all  slavery 
is  contrary  to  the  law  of  nature. 

§  4.  For  a  proper  inquiry  into  the  truth  of  this 
proposition,  it  becomes  very  important  that  we 
should  have  a  definite  understanding  of  what  is 
meant  by  the  law  of  nature.  Jurists  have  declared 
it  to  be  the  only  true  foundation  of  all  law.  Inter- 
national law  is  defined  to  be  but  the  law  of  nature 
as  applied  to  the  conduct  and  affairs  of  nations. 
Philosophers  have  vied  with  each  other  in  pronounc- 
ing encomiums  upon  its  pure  morality  and  unadul- 
terated justice;  and  in  the  prophetic  vision  of  the 
greatest  of  Roman  orators,  it  was  calculated  to  bind 
the  world  in  one  great  bond  of  justice,  when,  in  pro- 
cess of  time,  there  should  be  "  non  alia  lex  Romae, 
alia  Athenis,  alia  nunc,  alia  posthac,  sed  una  lex 
et  sempiterna  prevalebit."  Hooker,  in  strains  no 
less  sublime,  has  said,  "  Of  this  law,  no  less  can  be 
said  than  that  her  seat  is  the  bosom  of  God,  her 
voice  the  harmony  of  the  world ;  all  things  in  heaven 
and  earth  do  her  homage,  the  very  least  as  feeling 
her  care,  the  greatest  as  not  exempted  from  her 
power ;  both  angels  and  men,  and  creatures  of  what 
condition  soever,  though  each  in  different  sort  and 
manner,  yet  all,  with  uniform  consent,  admiring  her 
as  the  mother  of  their  peace  and  joy."1 

§  5.  Yet  we  find  it  very  difficult  to  cull  from  them 
all,  a  clear,  concise,  tangible  definition  of  what  is 
meant  by  the  law  of  nature.  The  Roman  lawyers 
and  others  applied  the  term  to  that  "law  which 
nature  teaches  all  living  creatures"  thereby  causing 

1  Ecclesiastical  Polity,  conclusion  of  Book  I. 


WHAT   IS   SLAVERY.  7 

it  to  include  all  animals,  beasts  as  well  as  men.1 
To  this  others  have  demurred,  and  insist_tbat  law 
can  be  applied  only  to  creatures  who  have  reason 
and  will,  to  perceive  an  obligation  and  to  adapt  their 
acts  accordingly.2  And  Potgiesseri  very  properly 
observes,  that  even  when  applied  to  men  it  assumes 
a  double  aspect :  "  Vel,  ut  concipiuntur  omnes  et 
singuli  homines  in  naturali  libertate,  nullique  im- 
perio  subjecti  vivere;  vel,  ut  intelliguntur  cum  ali- 
quibus  tantum  in  societatem  civilem  coivisse,  cum 
reliquis  autem  nullo,  nisi  communi  humanitatis 
vinculo  colligari."3 

§  6.  As  great  diversity  exists  when  we  come  to 
examine  the  rules  deduced  from  this  law.  Hobbes 
found  one  of  its  fundamental  rules  to  be,  that  war 
was  the  natural  condition  of  mankind.  Montesquieu, 
on  the  contrary,  declares  peace  to  be  the  first  law  of 
nature.4  Cicero,  as  we  have  seen,  supposed  its  obli- 
gations to  be  sufficient  to  be  a  rule  of  conduct  for  all 

1  Just.  Lib.  I,  tit.  2.  "Jus  naturale,"  says  Ulpian,  "est  quod 
natura  omnia  animalia  docuit."  Puff.  Bk.  II,  ch.  iii,  §§  2,  3  j 
Ward's  Law  of  Nat.  vol.  i,  41.  St.  Ambrose,  upon  this  principle, 
declared  the  copulation  of  asses  and  mares,  by  which  mules  are 
produced,  forbidden,  the  same  being  an  unnatural  connection. 
Hexsemeri,  Lib.  V,  c.  3,  quoted  by  Puff. 

2Puffendorf,  Bk.  II,  ch.  iii,  §  2;  Rutherforth's  Just.  Ij 
Ayliffe's  Civil  Law,  Bk.  I,  tit.  2. 

Thus  Hesiod,  Op.  &  Dier.  Lib.  I : 

"  This  law  did  Jove  for  human  race  ordain; 
The  beasts,  the  fishes,  and  the  feathered  train, 
He  left  to  mutual  spoil  and  mutual  prey, 
But  justice  gave  to  man." 

3  De  Statu  Servorum,  Proleg.  §  3. 

*  Montesquieu,  Spirit  of  Laws,  Bk.  I,  ch.  ii. 


8  LAW   OF  NEGRO   SLAVERY. 

nations.  Yet  "Ward,  after  examining  its  claims  with 
great  attention,  is  forced  to  conclude,  in  the  language 
of  another  writer,  that  "  To  speak  of  one  fixed,  im- 
mutable, and  universal  law  of  nature,  is  framing  an 
imaginary  scheme,  without  the  least  foundation  in 
the  nature  of  things,  directly  contrary  to  the  present 
order  of  the  whole  creation."1 

§  7.  The  expression  "  law  of  nature"  is  sometimes, 
though  unphilosophically,  used  to  express  those  de- 
ductions which  may  be  drawn  from  a  careful  exami- 
nation of  the  operations  of  the  natural  world.  Hence, 
it  is  said  that  slavery  is  contrary  to  the  law  of  nature, 
because  we  find  no  counterpart  or  analogous  operation 
in  the  natural  world.  To  this  we  may  say,  in  the 
first  place,  that  by  such  a  definition  of  the  law  of 
nature,  cannibalism  and  every  other  horrid  crime  of 
savage  or  natural  man  would  be  justified.  Among 
lower  animals,  the  destruction  of  their  own  species  is 
of  frequent  occurrence.  In  the  second  place,  that  the 
fact  does  not  exist  as  stated,  for  not  only  is  slavery 
found  to  coexist  with  the  human  race,  but  even 
among  the  lower  animals  and  insects,  servitude,  in 
every  respect  the  counterpart  of  negro  slavery,  is 
found  to  exist.  It  is  a  fact,  well  known  to  entomolo- 
gists, and  too  well  established  to  admit  of  contradic- 
tion, that  the  red  ant  will  issue  in  regular  battle 
array,  to  conquer  and  subjugate  the  black  or  negro 
ant,  as  he  is  called  by  entomologists.  And,  that 

1  Ward's  Law  of  Nations,  vol.  i,  ch.  ii,  p.  119.  In  the  four- 
teenth century,  Bartholus,  the  most  famous  civilian  of  his  day,  con- 
tended gravely,  that  the  Emperor  of  Germany  was  the  Emperor  of 
the  world ;  and  Dante,  another  civilian,  gave  as  the  reason  for  it; 
because  it  was  for  their  good.  Ibid.  77. 


WHAT    IS   SLAVERY.  9 

these  negro  slaves  perform  all  the  labor  of  the  com- 
munities into  which  they  are  thus  brought,  with  a 
patience  and  an  aptitude  almost  incredible.  These 
facts,  originally  noticed  and  published  by  Huber, 
have  subsequently  been  verified  by  many  observers ; 
and  M.  Latreille  has  demonstrated,  that  the  rufescent 
ants,  on  account  of  the  form  of  their  jaws  and  the 
accessory  parts  of  their  mouth,  have  not  the  physical 
ability  either  to  prepare  habitations  for  their  family, 
to  procure  food,  or  to  feed  them.1  Upon  this  defini- 
tion, therefore,  of  the  law  of  nature,  negro  slavery 
would  seem  to  be  perfectly  consistent  with  that 
law. 

§  8.  With  other  writers,  the  law  of  nature  is  held 
to  be  the  general  conduct  of  mankind  under  any  given 
state  of  circumstances.  Thus,  "  the  whole  of  this 
interesting  question  resolves  itself,  at  last,  into  the 
history  of  man.  For,  in  vain  do  we  pursue  the 
matter  through  all  the  subtleties  of  intellect,  in  vain 
are  the  profoundest  metaphysics  made  use  of  to  prove 
anything  concerning  the  nature  of  man  a  priori.  Of 
that  nature  I  can  obtain  no  knowledge,  except 
through  the  same  channel  by  which  I  become  ac- 
quainted with  the  nature  of  any  other  animal ;  nor 
can  I  tell  what  it  is  that  nature  demands  of  man  to 
do,  except  by  inquiring  what  he  has  actually  done."2 
If  this  be  the  test,  the  answer  is  easily  given  to  the 

1  Considerations  nouvelles,  &c.,  p.  408.  For  very  interesting 
accounts  of  the  facts  here  stated,  and  many  others  equally  as  re- 
markable, see  Spence  &  Kirby's  Entomology,  vol.  ii,  pp.  68-88 ; 
Silliman's  Journal,  vol.  xiii,  pp.  177,  178 ;  Natural  History  of 
Insects,  vol.  viii,  Harper's  Family  Library,  pp.  130,  et  seq. 

a  Ward's  Law  of  Nations,  vol.  i,  67. 


10  LAW  OF    NEGRO    SLAVERY. 

inquiry  as  to  the  consistency  of  slavery  with  the  law 
of  nature.  Its  universality  through  every  age  of  the 
world,  since  Noah  announced  the  curse  of  Canaan,  is 
too  well  established  to  require  argument. 

§  9.  What  then  is  the  law  of  nature  ?  Grotius, 
the  father  of  modern  natural  law,  defines  it  to  be 
"the  dictate  of  reason,  by  which  we  discover  whether 
an  action  be  good  or  evil,  by  its  agreement  or  dis- 
agreement with  the  rational  social  nature  of  man."1 
Blackstone  and  many  other  writers  define  it  to  be 
"the  will  of  the  Creator."2  The  Roman  law  made 
it  synonymous  with  "  natural  justice  and  equity,  and 
the  rules  of  abstract  propriety ;"  and  a  late  English 
writer  (Wildman),  adopts  this  as  the  more  simple 
and  tangible  definition.3  Cicero  defines  this  law  to 
be  "  right  reason,  implanted  in  man  by  nature,  com- 
manding those  things  which  ought  to  be  done,  and 
forbidding  the  contrary."4  The  object  of  this  law 
he  declares  to  be  "  God,  our  neighbor,  and  ourselves."5 
Erskine,  the  Scotch  commentator,  adopts  the  defini- 
tion of  Grotius.6  Ayliffe,  in  his  Pandects  of  the  civil 
law,  approves  best  that  of  Cicero.7  Rutherford  says, 
"  Natural  laws  are  those  which  mankind  are  obliged 

1  In  another  place,  he  says,  "  Bonum  et  aequum,  id  est  rerum 
naturae  jus."  Lib.  II,  18,  §  3. 

3  Comm.  vol.  i,  p.  39.  The  writers  on  the  common  law,  gene- 
rally, have  adopted  this  definition.  See  Kent's  Comm.  vol.  i,  pp.  2, 
4,  and  notes;  Manning's  Comm.  Law  of  Nations,  Bk.  II,  ch.  i;  see 
also  Heineccius,  De  Jur.  Nat.  &  Gent.  Lib.  I,  cap.  i,  §  12. 

3  Wildman's  International  Law,  ch.  i,  p.  3. 

4  De  Legibus,  Lib.  I.  5  Tusc.  Qusest.  Lib.  I,  c.  26. 
8  Institutes,  &c.,  Bk.  I,  tit.  i,  §  7. 

?  Book  I,  tit.  2,  §  1. 


WHAT   IS   SLAVERY.  11 

to  observe  from  their  nature  and  constitution."1 
Similar  is  the  exposition  of  Puffendorf,  that  it  is 
"that  most  general  and  universal  rule  of  human 
actions,  to  which  every  man  is  obliged  to  conform, 
as  he  is  a  reasonable  creature."2  Vattel  says,  "  The 
general  law  of  natural  society  is,  that  each  individual 
should  do  for  the  others  everything  which  their 
necessities  require,  and  which  he  can  perform  with- 
out neglecting  the  duty  which  he  owes  to  himself."3 
The  editor  of  the  English  translation  of  this  author 
(ed.  1797),  defines  the  law  of  nature  to  be  those 
"  rules  which  man  must  follow  in  order  to  attain 
the  great  end  of  his  being,  viz.,  the  most  perfect 
happiness  of  which  he  is  susceptible."4  "Ward  adopts 
the  same  idea,  when  he  declares  the  fundamental 
principles  of  this  law  to  be  "  the  desire  of  happiness, 
the  pursuit  of  good,  and  the  rejection  of  evil."5  The 
same  view  is  taken  by  Chancellor  d'Aguesseau, 
when  he  says,  that  "  for  a  man  to  live  according  to 
nature,  is  to  follow  in  all  things  that  course,  which 
conducts  most  surely  to  his  true  end,  which  is  to  be 
as  perfect  and  happy  as  is  consistent  with  his 
nature."6  Similar  is  the  definition  of  Burlamaqui : 
"  Those  rules  which  nature  alone  prescribes  to  man, 
in  order  to  conduct  him  safely  to  the  end  which 
every  one  has,  and  indeed  ought  to  have,  in  view, 

1  Institutes  of  Natural  Law,  Bk.  I,  ch.  i,  §  5. 

a  Law  of  Nature  and  Nations,  Bk.  II,  ch.  iii,  §  1. 

8  Law  of  Nations,  Bel.  Bk.  p.  9. 

4  Note  to  page  Iviii.  5  Law  of  Nations,  vol.  i,  p.  71. 

6  Meditations  Metaphysiques,  xix;  Oeuvres,  torn,  xiv,  p.  460. 


12  LAW  OF   NEGRO   SLAVERY. 

namely,  true  and  solid  happiness."1  Carlyle,  speak- 
ing in  reference  to  negro  slavery,  says,  "  This  is  the 
eternal  law  of  nature  for  a  man,  that  he  shall  be 
permitted,  encouraged,  and  if  need  be  compelled,  to 
do  what  work  the  Maker  of  him  has  intended,  by 
the  making  of  him  for  this  world."2 

§  10.  These  varying  definitions  might  be  multi- 
plied to  almost  any  extent.3  Sufficient  have  been 
adduced  for  our  purpose,  viz. :  first,  to  show  that  as 
a  general  rule,  men  have  very  indefinite  ideas,  when 
they  speak  of  the  law  of  nature,  and  would  many 
times  be  puzzled  to  explain  their  own  meaning ; 
second,  to  deduce  from  these  the  most  satisfactory 
idea  of  this  law,  for  the  investigation  which  we 
undertake.  From  what  has  been  said,  it  is  evident 
that  whatever  definition  we  adopt,  the,_na_ture [_pf 
man  enters  as  a  very  important  element,  and  if  that 
nature  is  subject  to  any  variation,  from  race,  or  cli- 
mate, or  history,  to  that  extent  the  consequences  of 
the  law  of  nature  must  vary  when  applied  to  him.4 

1  The  Principles  of  Natural  Law,  Pt.  I,  ch.  i. 

3  Letter  on  Rights  of  Negroes.     So,  again,  "If  thou  do  know 
better  than  I,  which  is  good  and  right,  I  conjure  you,  in  the  name 
of  God,  force  me  to  do  it;  were  it  by  never  such  brass  collars,  whips, 
and  handcuffs,  leave  me  not  to  walk  over  precipices."     Past  and 
Present,  Bk.  Ill,  ch.  xiii.     So  again,  "It  is  the  everlasting  pri- 
vilege of  the  foolish  to  be  governed  by  the  wise,  to  be  guided  in  the 
right  path  by  those  who  know  it  better  than  they.     This  is  the 
'first  right  of  man.'  "     Latter  Day  Pamphlets,  No.  1. 

8  See  Burrill's  Law  Dictionary;  Bouvier's  Law  Dictionary;  Web- 
ster's Dictionary;  Jacob's  Law  Dictionary;  Holthouse's  Law  Dic- 
tionary; Wheaton's  Law  of  Nations,  ch.  i. 

4  Sir  James  Mackintosh  recognizes  this  fact,  in  his  Introductory 
Discourse  on  the  Law  of  Nature  and  Nations.     Essays,  p.  29,  35. 


WHAT   IS    SLAVERY.  13 

To  illustrate.  The  German  student,  immersed  for 
years  amid  the  ponderous  tomes  of  some  university 
library,  finds  nothing  in  his  voluntary  imprisonment 
uncongenial  to  his  nature.  But  the  American  Indian 
submitting  to  the  same  fate,  would  do  violence  to 
the  law  of  his  nature,  because  his  pursuit  tends 
nothing  to  the  great  end  of  his  existence,  the  greatest 
happiness  of  which  he  is  susceptible.  And  hence 
slavery  jmji3r_be_uitej:lyjj^ 

nature  when  applied  to  one  race  of  men,  and  yet  be 
perfectly  consistent  with  the  nature  of  others.1 

§  11.  Again.  We  must  be  careful  to  distinguish 
between  the  state  of  nature  and  the  law  of  nature. 
Many  things  are  contrary  to  the  state  of  nature, 
which  are  not  contrary  to  the  law  of  nature.  Mar- 
riage, government,  all  civilization  is  adverse  to  a 
state  of  nature,  yet  it  would  be  hardly  asserted,  that 
thereby  violence  was  done  to  the  law  of  nature.  A 
celebrated  Scotch  commentator  applies  this  distinc- 
tion clearly  and  philosophically  to  the  subject  of 
slavery :  "  It  is  indeed  contrary  to  the  state  of 
nature,  by  which  all  men  were  equal  and  free ;  but 
it  is  not  repugnant  to  the  law  of  nature,  which  does 
not  command  men  to  remain  in  their  native  freedom, 
nor  forbid  the  preserving  persons  at  the  expense  of 
their  liberty,"  &c.2  Heineccius  points  out  clearly  the 
same  distinction,  for  while  with  all  writers  on  the 

So  also  Cicero,  "Natura  enim  juris  explicanda  est  nobis,  eaque  ab 
hominis  repetenda  natura."  De  Leg.  Lib.  I,  c.  v. 

1  Montesquieu,  Spirit  of  Laws,  Bk.  XV,  ch.  viii. 

3  McDouall's  Institutes,  Bk.  I,  tit.  2,  §  77,  p.  66.  Burlaraaqui 
seems  to  favor  this  distinction,  though  not  pointedly,  in  his  Prin- 
ciples of  Natural  Law,  Pt.  I,  ch.  iv,  §  11. 


14  LAW  OF   NEGRO   SLAVERY. 

civil  law,  he  declares  the  natural  freedom  of  all 
men,  he  adds  :  "  Posset  videri  servitus  juri  naturae 
repugnare;  sed  id,  merito  negatur;  servitus  enim,  in 
se  nihil  aliud  est,  quam  obligatio  ad  perpetuas 
operas.  Si  non  injustum  est  obligari  ad  annuas 
operas,  quidni  et  ad  perpetuas  ?"*  "  It  may  appear 
that  slavery  is  repugnant  to  the  law  of  nature ;  but 
that  may  be  properly  denied.  For  slavery  in  itself 
is  nothing  but  an  obligation  for  perpetual  service.  If 
it  be  not  wrong  to  be  bound  to  serve  for  a  year,  why 
not  also  for  life  ?"2  And  again,  "  Juri  naturae,  hujus 
modi  servitus  non  repugnant,  sed  tamen  non  est 
juris  naturae;  quae  ssepe  auctores  confundunt."3 
"  This  kind  of  slavery  is  not  repugnant  to  the  law  of 
nature,  but  yet  is  not  of  natural  right,  which  often- 
times authors  confound."  The  admission  therefore 
of  the  proposition  that  "  all  men  are  created  free," 
or  are  free  in  a  state  of  nature,  does  not  carry  with 
it  as  a  consequence  that  slavery  is  inconsistent  with 
the  law  of  nature.  "  Jus  natures  tamen  id  non 
impedit."4 

§  12.  So  the  Roman  law  defined  slavery  to  be  a 
condition,  "qua  quis  dominio  altero  contra  naturam, 

1  PrEelec.  Ac.  in  H.  Grot.  Lib.  II,  cap.  v,  §  27. 

3  Heinec.  Prgelec.  Ac.  in  H.  Grot.  Lib.  II,  cap.  v,  §  27. 
8  Ibid.  §  32. 

4  Heinec.  Prselec.  Ac.  in  H.  Grot.  Lib.  II,  cap.  v,  §  27.     So  also 
Potgiesseri,  speaking  of  slavery  by  captivity,  "  Tametsi — servitus 
ex  captivitate  orta  sit  contra  naturam,  id  est,  libertatem  naturalem, 
non  tamen,  hoc  ipso,  contra  jus  naturae  erit."     De  statu  serv.  prol. 
§  25.     After  stating  the  arguments,  pro  and  con,  he  comes  to  the 
same  conclusion  as  to  slaves  by  birth,  §§  26,  27,  29.     And  as  to 
slaves  by  penalty  of  the  law,  §  31. 


WHAT   IS    SLAVERY.  15 

subjicitur."1  But  the  commentators  upon  that  law 
warn  us,  "  Id  non  intelligi  debere  ac  si  juri  naturae 
adversetur,  sed  tantum  statui  natural!  sive  primaevo, 
in  quo  quilibet  liber  nascitur."2  "  This  is  not  to  be 
understood  as  if  it  was  opposed  to  the  law  of  nature, 
but  only  to  that  natural  or  primeval  condition,  in 
which  every  one  is  born  free."  So  Vinnius  :  "  Hoc 
est  contra  cominunem  illam  omnium  hominum  con- 
ditionem,  quam  ab  initio  habuerunt  a  natura,  quan- 
quam  justitiae  natural!  non  repugnat,  ex  pactione  aut 
delicto  servum  fieri."3  "  This  is  contrary  to  that 
common  condition  of  all  men,  which  they  had,  by 
nature,  from  the  beginning,  although  it  is  not  repug- 
nant to  natural  justice  to  become  a  slave,  either  by 
contract  or  by  crime."  So  Huberi :  "Dicitur  contra 
naturam  et  contra  jus  naturae.  Hoc  est  contra 
statum  naturae  primaevum  ut  jus  pro  facultate  accipi- 
atur,  non  contra  dictaraen  rectse  rationis :  vel  est  con- 
tra jus  naturae  permittens  non  praecipiens."4  And 
again,  "servitutem  cum  ratione  non  pugnare,  diximus 
modo."5  It  is  said  to  be  contrary  to  nature  and  con- 
trary to  the  law  of  nature.  This  is  contrary  to  the 
original  state  of  nature,  that  right  should  be  derived 
from  power,  but  it  is  not  opposed  to  the  dictates  of 
right  reason,  nor  is  it  contrary  to  the  law  of  nature, 
which  permits,  but  does  not  enjoin  it,  and  we  have 
said  above,  that  servitude  does  not  conflict  with  reason. 
§  13.  The  same  distinction  was  taken  by  the 

1  Just.  Lib.  I,  tit.  2,  §  2. 

a  Potgiesseri,  De  statu  servorum,  proleg.  XIII. 

1  Vinnius,  Comm.  Lib.  I,  tit.  3,  §  2. 

*  Frselect.  Lib.  I,  tit.  3,  §  3.  •  Ibid.  §  6. 


16  LAW  OF  NEGRO   SLAVERY. 

Fathers  of  the  Church,  on  the  subject  of  slavery. 
Bishop  England,  reviewing  them  at  length,  says  : 
"  Thus,  a  state  of  voluntary  slavery  is  not  pro- 
hibited by  the  law  of  nature."  "  All  our  theolo- 
gians have,  from  the  earliest  epoch,  sustained,  that 
though  in  a  state  of  pure  nature  all  men  are  equal, 
yet  the  natural  law  does  not  prohibit  one  man  from 
having  dominion  over  the  useful  actions  of  another, 
as  his  slave."  The  following,  quoted  by  him  from 
St.  Thomas  of  Aquin,  makes  the  point  clearly  : 
"  This  man  is  a  slave,  absolutely  speaking,  rather  a 
son,  not  by  any  natural  cause,  but  by  reason  of  the 
benefits  which  are  produced ;  for  it  is  more  beneficial 
to  this  one  to  be  governed  by  one  who  has  more 
wisdom,  and  to  the  other  to  be  helped  by  the  labor 
of  the  former."1  Cassagnac,  pursuing  the  same  idea, 
gives  us  the  views  of  other  Fathers,  to  the  same 
effect.  Thus,  Saint  Basil  says  :  "  He  who,  by  the 
weakness  of  the  intellect,  has  not  in  him  that  which 
nature  requires,  finds  it  to  his  interest  to  become  the 
slave  of  another,  the  experience  of  his  master  being 
to  him  what  the  pilot  is  to  the  vessel."2 

§  14.  With  these  preliminary  remarks,  we  adopt, 
as  the  law  of  nature,  when  applied  to  man  in  his 
intercourse  with  his  fellow-man,  that  obligation 
which  reason  and  conscience  impose,  so  to  shape 
his  course  as  to  attain  the  greatest  happiness,  and 
arrive  at  the  greatest  perfection  of  which  his  nature 

1  Letters  of  Bishop  England  to  Hon.  John  Forsyth,  pp.  22,  23. 
He  quotes  from  St.  Augustine,  St.  Ambrose,  St.  John  Chrysostom, 
Pope  Gelasius  I,  &c.  For  the  opinions  of  other  Christian  Fathers 
on  the  subject  of  slavery,  see  ante,  Preliminary  Sketch. 

9  Cassagnac,  Voyage  aux  Antilles,  torn,  ii,  p.  413.  He  quotes 
also  from  St.  Bernard. 


WHAT    IS    SLAVERY.  17 

is  susceptible.  Consequently,  whatever  interferes 
with  the  attainment  of  this  happiness  and  perfec- 
tion does  violence  to  the  law  of  his  nature,  and 
whatever  promotes  or  is  consistent  therewith  is 
sanctioned  by  the  law  of  his  nature.  In  this  view, 
natural  rights  depend  entirely  upon  the  nature  of 
the  possessor,  not  of  the  right ;  for,  it  is  the  former 
and  not  the  latter  that  determines  the  question  of 
right.  Hence,  to  speak  of  the  natural  right  to  per- 
sonal liberty  is  unphilosophical,  until  the  previous 
question  is  settled,  that  such  liberty  will  conduce  to 
the  happiness  and  perfection  of  the  possessor. 

§  15.  In  this  view,  is  Negro  Slavery  consistent 
with  the  Law  of  Nature  ?  We  confine  the  inquiry 
to  negro  slavery,  because,  upon  the  principles 
already  established,  it  is  undoubtedly  true,  that  the 
enslavement,  by  one  man  or  one  race,  of  another 
man  or  another  race,  physically,  intellectually,  and 
morally,  their  equals,  is  contrary  to  the  law  of 
nature,  because  it  promotes  not  their  happiness, 
and  tends  not  to  their  perfection.  Much  of  the 
confusion  upon  this  subject  has  arisen  from  a  failure 
to  notice  this  very  palpable  distinction.  The  ancient 
Greeks  were  so  far  the  superiors  of  their  contempo- 
raries, that  it  did  no  violence  to  the  existing  state 
of  things  for  their  philosophers  to  declare  their  pre- 
eminence, and  draw  thence  the  conclusions  which 
legitimately  followed.  Hence,  Aristotle  declared 
that  some  men  were  slaves  by  nature,  and  that  sla- 
very was  absolutely  necessary  to  a  perfect  society.1 

}  Polit.  Lib.  I,  cap.  i.     Hence  Euripides,  Iphig. : 
"Tis  fit  barbarians  own  the  Grecian  sway, 
And  not  that  Greece  should  serve  a  barbarous  lord. 
2 


18  LAW  OF   NEGRO   SLAVERY. 

§  16.  On  the  contrary,  the  slaves  of  Europe  during 
the  middle  ages,  and  of  Britain  prior  to  the  Norman 
invasion,  were  many  of  the  same  race  with  their 
masters,  their  equals  in  intelligence  and  in  strength, 
and  nothing  but  the  accidents  of  their  birth  distin- 
guished them  apart.  It  is  not  strange,  therefore, 
that  their  philosophers  and  jurists  should  see  in  such 
slavery  palpable  violations  of  the  law  of  nature, 
and  should  have  proclaimed  that  nature  made  them 
all  free  and  equal.1  Montesquieu  perceived  this  dis- 
tinction and  the  different  conclusions  to  which  these 
different  states  of  fact  gave  rise,  and  hence,  whilst 
he  says  all  slavery  must  be  accounted  unnatural, 
yet  he  admits,  that  "  in  some  countries  it  is  founded 
on  natural  reason,"  viz.,  "  countries  where  the  ex- 
cess of  heat  enervates  the  body,  and  renders  men  so 
slothful  and  dispirited,  that  nothing  but  the  fear  of 
chastisement  can  oblige  them  to  perform  any  labori- 
ous duty."2  Hence,  he  says,  that  "  natural  slavery 
must  be  limited  to  some  particular  parts  of  the 
world."3  So  Puffendorf  says  :  "  It  is  most  evident 
that  some  men  are  endued  with  such  a  happiness  of 
wit  and  parts,  as  enables  them  not  only  to  provide 

Wise  nature  made  the  law  ;  'twas  nature  formed 
Them  to  obey,  and  us  to  be  obeyed."' 

It  is  a  curious  fact,  that  Sir  Thomas  More,  one  of  England's 
purest  and  wisest  judges,  in  his  celebrated  creation  of  fancy,  Uto- 
pia, provided  each  of  his  families,  in  this  imaginary  perfect  world, 
with  two  slaves  to  perform  the  menial  offices,  thereby  confirming 
Aristotle's  opinion  of  the  necessity  of  slavery  to  a  perfect  society. 

1  Puffendorf,  Bk.  Ill,  ch.  ii;  Montesquieu,  Esprit  des  Lois, 
Liv.  XV,  ch.  yiii. 

3  Spirit  of  Laws,  Bk.  XV,  ch.  vii.  » Ibid.  ch.  viii. 


WHAT   IS   SLAVERY.  19 

for  themselves  and  their  own  affairs,  but  to  direct 
and  govern  others.  And  that  some  again  are  so 
extremely  stupid  and  heavy,  as  to  be  unfit  to 
govern  themselves,  so  that  they  either  do  mischief 
or  do  nothing,  unless  others  guide  and  compel  them. 
And  farther,  that  these  last  being  commonly  fur- 
nished by  nature  with  strong  and  hardy  bodies,  are 
capable  of  bringing  many  notable  advantages  to 
others  by  their  labor  and  service.  Now,  when  these 
have  the  fortune  to  live  in  subjection  to  a  wise 
director,  they  are  without  doubt  fixed  in  such  a 
state  of  life  as  is  most  agreeable  to  their  genius  and 
capacity."1 

§  17.  So  Heineccius  :  "  Ipsa  quorundam  natura  ad 
servitutem  aptissiina  et  tota  comparata  est,  it  a  ut 
nee  actiones  suasdirigere  necvictum  et  amictum  sibi 
lucrari  possint."2  "  The  nature  itself  of  some  is  so 
fitted  and  prepared  for  servitude,  that  they  can 
neither  direct  their  own  actions  nor  furnish  food  and 
clothing  for  themselves."  Potgiesseri  advances  the 
same  opinion :  "  Ita  enim  societas  humana  comparata 
est,  ut  alii  licet  se  pacto,  ad  operas  adhibendas 
obstrinxerint,  eas  tamen,  segniter  et  perfidiose  per- 

1  Law  of  Nature  and  Nations,  Bk.  Ill,  ch.  ii,  §  8 ;  see  also  Bk. 
VI,  ch.  iii,  §  2.  He  quotes  from  Apuleius  as  follows :  "  It  is 
most  agreeable  that  a  man  who  is  neither  by  nature  or  industry 
prepared  for  a  right  way  of  living,  should  not  govern,  but  be 
governed;  should  be  a  servant,  not  a  master;  should, upon  account 
of  his  own  weakness  and  incapacity,  be  under  the  control  of  others; 
should  sustain  the  part  of  obeying,  not  of  commanding."  Carlyle 
adopts  the  same  reasoning,  Latter  Day  Pamphlets,  No.  1.  Potgies- 
seri advances  the  same  opinion. 

9  Praelec.  Ac.  ad  H.  Grop.  Lib.  H,  cap.  v,  §  27. 


20  LAW   OF   NEGRO   SLAVERY. 

ficiant,  adeo,  ut  eos  castigationibus  ad  officium  sui 
cogi  necessum  sit ;  alii  vero,  a  prgestatione  mutuaa 
opis  sint  alienissimi,  et  libertatem  effrenam  prsefer- 
ant  honestae  et  tolerabili  addictioni,  atque  malint, 
ex  rapto  et  latrociniis  vivere,  et  in  furcam  agi  quam 
licitis  mediis  inopiae  suae  consulere."1  "For  human 
society  is  so  constituted,  that  it  is  lawful  for  some 
to  bind  themselves  by  contract  to  the  performance 
of  duty,  so  that  it  maybe  necessary  to  compel  them 
to  its  performance  by  stripes."  So  another  learned 
writer,  in  speaking  of  the  slavery  among  the  Turks, 
says,  "  Non  omnium  ingenia  inopem  ferunt  liberta- 
tem, nee  omnes  ita  nati  sunt,  ut  se  regere  et  suo 
arbitrio  recte  uti  sciant."  "  The  natural  tempera- 
ment of  all  will  not  suffer  helpless  liberty,  nor  are 
all  so  born  that  they  know  how  to  govern  them- 
selves, and  rightly  to  use  their  own  power."  He 
says,  "Ceteroquin  qui  apud  nos  mendicant,  apud 
eos  (the  Turks)  serviunt."  "  Otherwise,  those  who 
beg  with  us,  serve  among  them."  And  concludes, 
"  At  nescio,  an  optime  rebus  nostris  consuluit  qui 
servitutem  primus  sustulit."  "  And,  I  doubt  whether 
he  consulted  best  our  interests,  who  first  abolished 
slavery."2  So  Hertius,  quoting  Aristides  :  "  Legem 
esse  naturse  a  potentioribus  plane  clariorem  factam, 
ut  majoribus,  minora  pareant."  "  That  this  is  the 
law  of  nature,  clearly  is  made  to  appear  by  the  most 
eminent,  that  the  less  should  obey  the  greater."  And 
also  Halicarnassus :  "  Naturae  legem  esse  omnibus 

1  De  Statu  Servorum,  Proleg.  §  32. 

9  Busheq.  In  Epistol.  Turcie,  Epist.  III. 


WHAT   IS    SLAVERY.  21 

insitam,  quam  nullum  tempus  dissolvat,  deterioribus 
semper  imperare  meliores."  That  this  law  of  nature 
is  engrafted  upon  all,  which  no  time  destroys ;  that 
the  noble  always  govern  the  ignoble.  Also  Plutarch : 
"Naturae  legem  semper  velle  potiorem  imperare 
deterioribus."  "  That  the  law  of  nature  always  prefers 
that  the  nobler  should  govern  the  ignoble."  Hertius 
adds:  "Quanquam,  ut  dixi,  hoc  non  sit  proprie, 
stricteque  dicendum  jus  naturale.  quoniam  jus  exi- 
gendi  nullum  tribuit."  "Though,  as  I  have  said, 
this  cannot  be  properly  and  strictly  called  a  natural 
right,  since  it  gives  no  right  of  exaction."1 

§  18.  Resuming  then  the  inquiry  as  to  the  consis- 
tency of  negro  slavery  with  the  law  of  nature,  the 
first  question  which  demands  our  attention,  and 
necessarily  is  preliminary  to  all  other  investigation, 
is,  what  is  the  nature  of  the  negro  ?  Were  this  ques- 
tion asked  of  a  mere  animal,  our  inquiry  would  be 
confined  to  his  physical  nature  alone,  and  could  we 
show  that,  like  the  horse  and  the  cow,  the  domesti- 
cation and  subjection  to  service  did  not  impair,  but 
on  the  contrary  improved  his  physical  condition,  the 
conclusion  would  be  inevitable,  that  such  subjection 
was  consistent  with  his  natural  development,  and 
therefore  not  contrary  to  his  nature.  But  we  recog- 
nize in  the  negro  a  man,  endowed  with  reason,  will, 
and  accountability,  and  in  order  to  justify  his  sub- 
jection we  must  inquire  of  his  intellectual  and  moral 
nature,  and  must  be  satisfied  that  its  development  is 
thereby  promoted.  If  this  be  true,  if  the  physical,  > 
intellectual,  and  moral  development  of  the  African 

1  De  Coll.  Leg.  I,  §  3. 


22  LAW  OF  NEGRO   SLAVERY. 

X" 

race  are  promoted  by  a  state  of  slavery,  and  their 
happiness  secured  to  a  greater  extent  than  if  left  at 
liberty,  then  their  enslavement  is  consistent  with 
the  law  of  nature,  and  violative  of  none  of  its  provi- 
sions. Is  the  negro's  own  happiness  thereby  best 
promoted  ?  Is  he  therein  most  useful  to  his  fellow- 
man  ?  Is  he  thereby  more  surely  led  to  the  dis- 
charge of  his  duty  to  God  ?  These,  as  we  have  seen, 
are  the  great  objects  of  the  law  of  nature,  "  God,  our 
neighbor,  and  ourselves." 

§  19.  In  this  investigation,  we  should  understand 
distinctly  the  meaning  to  be  attached  to  "  Negro." 
The  black  color  alone  does  not  constitute  the  negro, 
nor  does  the  fact  of  a  residence  and  origin  in  Africa. 
Agassiz  very  properly  remarks,  that  "in  Africa, 
we  have  the  Hottentot  and  Negro  races  in  the  south 
and  central  portions  respectively,  while  the  people 
of  Northern  Africa  are  allied  to  their  neighbors  in 
Europe,  just  as  we  have  seen  to  be  the  case  with 
the  zoological  fauna  in  general."1  The  language  and 
history  of  the  nations  of  Northern  Africa  show  them 
to  have  a  different  and  Asiatic  origin.  The  people 
we  are  inquiring  of  are  thus  described  by  Cuvier  : 
"  The  negro  race  is  marked  by  a  black  complexion, 
crisped  or  woolly  hair,  compressed  cranium,  and  a 
flat  nose.  The  projection  of  the  lower  parts  of  the 
face  and  the  thick  lips  evidently  approximate  it  to 
the  monkey  tribe.  The  hordes  of  which  it  consists 
have  always  remained  in  the  most  complete  state  of 
utter  barbarism."2  And  even  of  this  very  extensive 

1  Principles  of  Zoology,  by  Agassiz  and  Gould,  180;  see  also  Mar- 
tin's Natural  History  of  Man  and  Monkeys,  p.  279. 

»  Animal  Kingdom,  McMurtrie's  translation  of  Bimanu;  p.  50. 


WHAT  IS   SLAVERY.  23 

negro  race,  there  are  a  great  number  of  tribes,  differ- 
ing not  so  much  in  their  physical  as  moral  nature, 
and  adapting  them  more  or  less  for  a  state  of  servi- 
tude. This  difference  was  well  known  among  the 
native  tribes  long  before  the  Dutch,  Portuguese,  and 
English  vied  with  each  other  in  extending  the  slave- 
trade  ;  and  the  Mandingo  slave-dealer  had  deter- 
mined this  question  long  before  a  mart  was  opened 
for  him  by  European  enterprise.1  Our  inquiry,  there- 
fore, is  properly  confined  to  those  tribes  of  negroes 
who  were  in  a  state  of  servitude  in  their  native 
land,  viz. :  the  Fantis,  Ashantis,  Krumen,  Quaquas, 
Congos,  Ibos  or  Eboes,  Whydah  or  Fidohs,  Coro- 
mantines,  Mandingoes,  £c.,  and  their  descendants  in 
America. 

§  20.  First  then  is  the  inquiry  as  to  the  physical 
adaptation  of  the  negro  to  a  state  of  servitude.  His 
black  color  peculiarly  fits  him  for  the  endurance  of 
the  heat  of  long-continued  summers.2  The  arched 
leg  and  receding  heel  seem  to  indicate  a  natural  pre- 
paration for  strength  and  endurance.3  The  absence 
of  nervous  irritability  gives  to  him  a  complete  ex- 

1  See  an  interesting  paper  on  this  subject,  by  R.  G.  Latham,  and 
read  in  a  course  of  Lectures,  before  the  Royal  Institution,  Man- 
chester, in  "  Ethnology  of  the  British  Colonies,"  pp.  33  to  75. 
The  planters  in  America  soon  discovered  this  difference,  and  hence 
a  Caffre  or  Cafir  negro  was  never  a  favorite  in  their  markets.     See 
upon  this  subject,  also,  Martin's  Nat.  Hist,  of  Man  and  Monkeys, 
220,  280,  299.     Cassagnac's  Voyage  aux  Antilles,  vol.  ii,  p.  129 ; 
Levavasseur,  Esclavage  de  la  race  noire,  77,  n. 

2  Copland's   Diet,  of  Pract.  Medicine,  Article  "  Climate,"    A 
Tribute  for  the  Negro,  p.   70 ;  Chambers's  Information  for  the 
People,  Art.  "Physical  History  of  Man." 

3  Cassagnac,  Voyage  aux  Antilles,  torn,  i,  p.  130. 


24  LAW  OF   NEGRO    SLAVERY. 

emption  from  those  inflammatory  diseases  so  destruc- 
tive in  hot  and  damp  atmospheres,  and  hence  the 
remarkable  fact,  that  the  ravages  of  that  scourge  of 
the  tropics,  the  yellow  fever,  never  reach  the  negro 
race.1  In  other  portions  of  the  body,  especially  the 
formation  of  the  pelvis,  naturalists  have  discovered 
a  well-defined  deterioration  in  the  negro  which,  a  late 
learned  observer,  Yrolik,  of  Amsterdam,  has  declared, 
shows  "a  degradation  in  type,  and  an  approach 
towards  the  lower  form  of  animals."2  So  the  arched 
dome  of  the  head  and  the  perpendicularity  of  the 
vertebral  column  are  said,  by  an  observant  writer, 
to  be  characteristic,  and  to  fit  the  negro  peculiarly 
for  the  bearing  of  burdens  upon  the  head.3 

1  Types  of  Mankind,  by  Nott  &  Gliddon,  68 ;  Dr.  Mosely's 
Treatise  on  Tropical  Diseases.  He  says:  "What  would  be  the 
cause  of  insupportable  pain  to  a  white  man,  a  negro  would  almost 
disregard.  I  have  amputated  the  legs  of  many  negroes,  who  have 
held  the  upper  part  of  the  limbs  themselves."  See  also,  on  the 
peculiar  diseases  of  negroes,  Guenebault's  Nat.  Hist,  of  Negro 
Race,  76 ;  White's  Regular  Gradation  in  Man,  73-79 ;  see  also 
Indigenous  Races  of  Man,  p.  380,  et  seq.  No  case  of  yellow  fever 
has  ever  occurred  in  Liberia. 

3  I  am  indebted  for  this  fact  to  Prichard's  Nat.  Hist,  of  Man,  p. 
123. 

3  Smith's  Nat.  History  of  Human  Race,  191.  Professor  Soem- 
mering  enumerates  forty-six  distinct  differences  in  the  anatomy 
of  the  Negro  from  the  European  race.  Ueber  die  koerperliche 
Verschiedenheit  des  Negers,  v.  d.  Europ.,  1785,  referred  to  in 
Guenebault's  Natural  History  of  the  Negro  Race,  p.  57. 

Lawrence  (p.  246),  describing  the  negro  variety,  says,  "  1.  Nar- 
row and  depressed  forehead,  the  entire  cranium  contracted  ante- 
riorly; the  cavity  less,  both  in  its  circumference  and  transverse 
measurements.  2.  Occipital  foramen  and  condyles  placed  further 
back.  3.  Large  space  for  the  temporal  muscles.  4.  Great  deve- 
lopment of  the  face.  5.  Prominence  of  the  jaws  altogether,  and 


WHAT   IS    SLAVERY.  25 

§  21.  As  a  connecting  link  between  the  physical 
and  mental  capacity  of  the  negro,  we  may  consider 

particularly  of  their  alveolar  margins  and  teeth;  consequent  obli- 
quity of  the  facial  line.  6.  Superior  incisors  slanting.  7.  Chin 
receding.  8.  Very  large  and  strong  zygomatic  arch,  projecting 
towards  the  front.  9.  Large  nasal  cavity.  10.  Small  and  flat- 
tened ossa  nasi ;  sometimes  consolidated  and  running  into  a  point 
above.  In  all  the  particulars  just  enumerated,  the  negro  structure 
unequivocally  approximates  to  that  of  the  monkey.  It  not  only 
differs  from  the  Caucasian  model,  but  is  distinguished  from  it  in 
two  respects  :  the  intellectual  characters  are  reduced  ;  the  animal 
features  enlarged  and  exaggerated.  .  .  .  This  inferiority  of  orga- 
nization is  attended  with  corresponding  inferiority  of  faculties, 
which  may  be  proved,  not  so  much  by  the  unfortunate  beings  who 
are  degraded  by  slavery,  as  by  every  fact  in  the  past  history  and 
present  condition  of  Africa." 

Nott  &  Gliddon  say,  "A  man  must  be  blind  not  to  be  struck  by 
similitudes  between  some  of  the  lower  races  of  mankind,  viewed 
as  connecting  links  in  the  animal  kingdom,  nor  can  it  be  rationally 
affirmed  that  the  ourang-outang  and  chimpanzee  are  more  widely 
separated  from  certain  African  and  Oceanic  negroes,  than  are  the 
latter  from  the  Teutonic  or  Pelasgic  types."  Types  of  Mankind, 
457. 

Dr.  "Wyman,  of  Harvard  University,  after  pointing  out  clearly 
the  difference  between  the  negro  and  ourang-outang,  adds :  "  Yet 
it  cannot  be  denied,  however  wide  the  separation,  that  the  negro 
and  ourang-outang  do  afford  the  points  where  man  and  the  brute 
— when  the  totality  of  their  organization  is  considered — most  nearly 
approach  each  other."1 

Charles  White,  a  naturalist  of  Manchester,  as  early  as  1795, 
published  a  work,  in  which  he  pointed  out  twenty-eight  distinct 
points  of  difference  between  the  African  and  European,  and  in  all 
of  which  the  latter  approached  the  brute  creation.9 

I  am  indebted  to  the  Indigenous  Races  of  Man,  and  the  Arti- 

1  Troglodytes  Gorilloe,  Boston  Jour,  of  Nat.  Hist.  1847,  p.  27.  Quoted  by 
Dr.  Nott,  p.  457. 

*  An  Account  of  the  Regular  Gradation  in  Man  (London),  83. 


26  LAW  OF   NEGRO   SLAVERY, 

the  osteological  formation  of  his  head,  and  compara- 
tive size  of  the  brain.  The  opinion  of  Cuvier  we 
have  already  noticed.  Good,  in  describing  the  negro, 
says  :  "  The  head  is  narrow  ;  the  face  narrow,  pro- 
jecting to  the  lower  part.  The  countenance,  in  this 
variety,  recedes  farther  than  in  any  other  from  the 
European,  and  approaches  much  nearer  than  in  any 
other  that  of  the  monkey."1  Camper,  Soemmering, 
Lawrence,  Virey,  Ebel,  and  Blumenbach,  agree  that 
the  brain  is  smaller ;  and  Gall,  Spurzheim,  and 
Combe,  that  it  is  so  distributed  as  to  denote  less 
capacity  for  reasoning  and  judging.2  On  the  con- 
trary, Prof.  Tiedemann,  in  a  paper  giving  the  result 
of  his  investigations  and  experiments  on  a  large 
number  of  skulls,  concludes  that  in  mere  bulk  the 
brain  of  the  negro  is  very  nearly  equal  that  of  the 
European.3  Dr.  Morton's  experiments  and  observa- 

cle  by  F.  Pulszky,  for  the  following  anecdote,  taken  from  Petro- 
nius,  who  wrote  in  the  days  of  Nero,  going  to  show  that  the  distinc- 
tive features  of  the  negro  were  well  known  in  his  day  :  Three 
vagrants,  having  taken  passage  on  a  vessel,  discovered  that  the 
merchant  owner  was  a  person  formerly  robbed  by  them.  One  pro- 
poses to  black  their  faces  with  ink,  and  pass  as  Ethiopians ;  but 
the  other  exclaims,  in  reply,  "  As  if  color  alone  could  transform 
our  shape !  for  many  things  have  to  conspire  that  the  lie  might  be 
maintained,  under  any  circumstances ;  or  can  we  fill  our  lips  with 
an  ugly  swelling  ?  can  we  crisp  our  hair  with  an  iron  ?  and  mark 
our  forehead  with  scars?  and  distend  our  shanks  into  a  curve? 
and  draw  our  heels  down  to  the  earth  ?"  p.  191. 

1  Book  of  Nature,  p.  214. 

8  Martin's  Nat.  Hist,  of  Man  and  Monkeys,  301 ;  Bachman  on 
the  Unity  of  the  Race,  224 ;  Guenebault's  Nat.  Hist,  of  Negro 
Race,  33 ;  Types  of  Mankind,  403. 

8  Philosophical  Transactions  of  the  Royal  Society  in  1836;  p. 
479. 


WHAT   IS   SLAVERY.  27 

tions  seem  to  have  led  him  to  the  conclusion  that 
the  brain  of  the  negro  was  somewhat  smaller.1 
Without  seeking  to  hold  the  balance  between  these 
authorities,  we  may  remark,  that  it  is  too  well 
settled  now  to  be  a  matter  of  doubt,  that  the  size  of 
the  brain  is  not  the  only  criterion  for  deciding  upon 
the  mental  capacity  of  the  possessor ;  and  philoso- 
phers least  disposed  to  profess  faith  in  phrenology 
as  a  science,  are  forced  to  admit  that  the  arrange- 
ment and  location  of  the  brain,  by  some  mysterious 
law,  are,  as  a  general  rule,  indicative  of  the  mental 
power.2  The  application  of  Camper's  facial  line  and 
facial  angle  demonstrated  the  inferiority  of  the  negro 
in  this  particular,  and  Prof.  Tiedemann  does  not 
seek  to  deny  the  correctness  of  the  result  thus 
tested.3 

§  22.  Second.  The  mental  inferiority  of  the  negro 
has  been  often  asserted  and  never  successfully  de- 
nied. An  inviting  field  for  digression  is  offered  here, 
in  the  much-mooted  question  of  the  unity  of  the 
human  race.  It  is  unnecessary  for  our  purposes  to 
enter  these  lists.  The  law  deals  with  men  and 
things  as  they  are,  and  whether  the  negro  was  origi- 
nally a  different  species,  or  is  a  degeneration  of  the 

1  Germanic  nations,  92  cubic  inches;  negroes,  83;  Types  of 
Mankind,  p.  454 ;  see  Tables  prepared  by  Dr.  Meigs,  in  Indi- 
genous Kaces  of  Man,  p.  257 ;  Bachman  on  Unity  of  Race,  227. 

9  Consult,  directly  on  this  point,  Combe's  Review  of  Morton's 
Crania  Americana;  Amer.  Journal  of  Science  and  Art,  vol. 
xxxviii,  No.  2. 

3  Phil.  Trans,  of  Royal  Soc.  1836;  see  also  Prichard's  Nat.  Hist. 
of  Man,  111,  112;  and  the  Natural  History  of  the  Human  Species, 
by  Lieut.  Charles  H.  Smith,  p.  190 ;  Martin's  Nat.  Hist,  of  Man 
and  Monkeys,  p.  296. 


28  LAW  OF   NEGRO    SLAVERY. 

same,  is  a  matter  indifferent  in  the  inquiry  as  to  his 
proper  status  in  his  present  condition.  We  deal 
with  him  as  we  find  him,  and  according  to  the  mea- 
sure of  his  capacity,  it  is  our  duty  to  cultivate  and 
improve  him,  leaving  to  time  to  solve  the  problem, 
whether  he  is  capable  of  restoration  to  that  pristine 
equality,  from  which  his  admirers  maintain  that  he 
has  fallen.1 

§  23.  Mentally  inferior,  now,  certainly  he  is. 
Says  Lawrence :  "  The  mind  of  the  negro  is  inferior 
to  that  of  the  European,  and  his  organization  also  is 
less  perfect."2  And  this  he  proves,  "  not  so  much 
by  the  unfortunate  beings  who  are  degraded  by 
slavery,  as  by  every  fact  in  the  past  history  and 
present  condition  of  Africa."3  Says  Charles  Hamil- 
ton Smith — whose  opportunities  for  observing  and 
judging,  for  ten  years,  on  the  Coast  of  Africa  and  in 
the  West  Indies  (1797  to  1807),  were  unsurpassed, 
and  whose  sympathies  he  confesses  are  with  the 
negro,  — "  The  typical  woolly-haired  races  have 
never  invented  a  reasoned  theological  system,  dis- 
covered an  alphabet,  framed  a  grammatical  lan- 
guage, nor  made  the  least  step  in  science  or  art.4 

1  The  following  curious  fable  is  translated  from  the  Arabic,  by 
Rosenrnuller :  "Niger  in  die  quodam  exuit  vestas  suas,  incipit 
que  capere  nivem  et  fricare  cum  ea  corpus  suum.  Dictum  autem 
ei  fuit :  quare  fricas  corpus  tuuin  nive  ?  Et  dixit  ille,  fortasse 
albescam.  Venitque  vir  quidam  sapiens  qui  dixit  ei :  0  tu,  ne 
afflige  te  ipsum :  fieri  enim  potest  ut  corpus  tuum  nigram  faciat 
nivem,  ipsum  autem  non  amittet  nigredinem."  Locmanni,  Fabula 
XXIII. 

As  to  the  probability  of  time  effecting  a  radical  change,  see 
Types  of  Mankind,  p.  260,  et  seq. 

*  Lectures  on  Slavery,  p.  74.  8  Page  246. 

*  F.    Pulszky,    iu    his    Iconographic    Researches,    furnished 


WHAT   IS    SLAVERY.  29 

They  have  never  comprehended  what  they  have 
learned,  or  retained  a  civilization  taught  them  by 
contact  with  more  refined  nations,  as  soon  as  that 
contact  had  ceased.  They  have  at  no  time  formed 
great  political  states,  nor  commenced  a  self-evolving 
civilization  ;  conquest  with  them  has  been  confined 
to  kindred  tribes  and  produced  only  slaughter. 
Even  Christianity,  of  more  than  three  centuries 
duration  in  Congo,  has  scarcely  excited  a  progres- 
sive civilization."1  Says  Knox :  "  The  grand  quali- 
ties which  distinguish  man  from  the  animal ;  the 
generalizing  powers  of  pure  reason  ;  the  love  of  per- 
fectibility ;  the  desire  to  know  the  unknown ;  and 
last  and  greatest,  the  ability  to  observe  new  pheno- 
mena and  new  relations, — these  mental  faculties  are 
deficient  or  seem  to  be  so  in  all  dark  races.  But  if 
it  be  so,  how  can  they  become  civilized  ?  What 
hopes  for  their  progress?"2  These  questions  are 

Messrs.  Nott  &  Gliddon,  for  their  late  work  on  the  Indigenous 
Races  of  Man,  speaking  of  the  black  race,  says,  "  Long  as  his- 
tory has  made  mention  of  negroes,  they  have  never  had  any  art  of 
their  own.  Their  features  are  recorded  by  their  ancient  enemies, 
not  by  themselves."  p.  188. 

Hume,  in  his  Essay  on  National  Characters,  after  arguing  for  the 
superiority  of  the  whites  over  all  other  races,  and  attributing  to 
them  all  civilization,  says,  "There  are  negro  slaves  dispersed  all 
over  Europe,  of  which  none  ever  discovered  any  symptoms  of 
ingenuity." 

1  The  Natural  History  of  the  Human  Species,  its  Typical  Forms, 
&c.  (Edinburgh),  p.  196.  "  In  no  part  of  this  extended  region 
(Negro  Africa)  is  there  an  alphabet,  a  hieroglyphic,  or  even  a  pic- 
ture, or  symbol  of  any  description."  Murray's  Encyclopaedia  of 
Geography,  vol.  iii,  p.  38 ;  see  also  Chambers's  Information  for  the 
People,  Art.  Physical  History  of  Man. 

3  Lectures  on  the  Races  of  Men,  190. 


80  LAW  OF   NEGRO   SLAVERY. 

answered  by  a  most  observant  and  intelligent  French 
traveller  in  the  West  Indies  :  "  The  friends  of  use- 
ful and  moral  liberty  should  strive  to  maintain  the 
supremacy  of  the  white  race,  until  the  black  race 
understands,  loves,  and  practises  the  duties  and 
obligations  of  civilized  life."1 

§  24.  Carlyle  places  this  question  in  an  eccentric 
but  plain  view,  addressing  himself  to  the  emancipated 
negroes  of  the  West  Indies  :  "  You  are  not  slaves 
now  !  nor  do  I  wish,  if  it  can  be  avoided,  to  see  you 
slaves  again  ;  but  decidedly  you  will  have  to  be  ser- 
vants to  those  that  are  born  wiser  than  you,  that 
are  born  lords  of  you ;  servants  to  the  whites  if  they 
are  (as  what  mortal  man  can  doubt  they  are?)  born 
wiser  than  you.  That,  you  may  depend  on  it,  my 
obscure  black  friends,  is  and  was  always  the  law  of 
the  world  for  you  and  for  all  men  to  be  servants,  the 

more  foolish  of  us  to  the  more  wise Heaven's 

laws  are  not  repealable  by  earth,  however  earth 
may  try?"2 

§  25.  The  intelligent,  unprejudiced  writers  of  the 
nori-slaveholding  States  of  America,  are  constrained 
to  admit  the  inferiority  of  the  negro  mind.  Pauld- 
ing,  speaking  of  amalgamation,  says  :  "  It  is  a  scheme 
for  lowering  the  standard  of  our  nature,  by  approxi- 
mating the  highest  grade  of  human  beings  to  the 
lowest."3  And,  "  We  have  a  right  to  conclude,  from 
all  history  and  experience,  that  there  is  an  equal 
disparity  of  mental  organization."  "  The  experience 

1  Cassagnac,  Voyage  aux  Antilles,  torn,  ii,  p.  291. 
*  Letter  on  Rights  of  Negroes ;  inserted,  at  length,  in  Negroma- 
nia,  502,  et  seq. 

3  Paulding,  on  Slavery  in  the  United  States,  61. 


WHAT    IS    SLAVERY.  31 

of  years  stands  arrayed  against  the  principle  of 
equality  between  the  white  man  and  the  black." 
"  All  that  the  black  man  has  ever  done  is  to  ap- 
proach to  the  lowest  scale  of  intellectual  eminence, 
and  the  world  has  demonstrated  its  settled  opinion 
of  his  inferiority  by  pronouncing  even  this  a  wonder."1 
Dr.  Morton,  impartial  and  scientific  as  he  is  acknow- 
ledged to  be,  says :  "  It  makes  little  difference  whether 
the  mental  inferiority  of  the  negro,  the  Samoyede, 
or  the  Indian,  is  natural  or  acquired;  for  if  they  ever 
possessed  equal  intelligence  with  the  Caucasian,  they 
have  lost  it,  and  if  they  never  had  it,  they  had 
nothing  to  lose.  One  party  would  arraign  Providence 
for  creating  them  originally  different,  another  for 
placing  them  in  circumstances  by  which  they  inevi- 
tably became  so.  Let  us  search  out  the  truth,  and 
reconcile  it  afterwards."2  Judge  Conrad  says :  "  The 
negro  in  the  North  has  equal,  if  not  superior,  advan- 
tages to  the  mass  of  poor  white  men.  ...  It  cannot, 
however,  be  boasted  that  his  intellectual  character 
has  been  materially  elevated,  or  his  moral  nature 
greatly  improved."3  George  H.  Calvert  says :  "  At 
one  end  of  the  human  scale  is  the  black  man,  at  the 
other  the  white ;  between  them  the  brown  and  the 
yellow.  The  white  man  never  comes  into  contact 
and  conflict  with  the  others,  that  he  does  not  con- 
quer them."4  We  might  add  the  names  of  Browne, 
the  triumphant  opponent  of  Prichard,  on  the  sub- 

1  Pages  66  and  67. 

3  Letter  to  Mr.   Gliddon,  quoted  in  Types  of  Mankind,  p.  lii 
of  Memoir.  3  Plea  for  the  South,  230. 

*  Scenes  and  Thoughts  in  Europe,  2d  Series,  p.  72. 


32  LAW  OF   NEGRO    SLAVERY. 

ject  of  the  hair  of  the  negro,  English/  Van  Am- 
bridge,2  and  others. 

§  26.  Puynode,  a  French  philanthropist,  says  : 
"  We  no  longer  consider  negroes  as  devoted  to  the 
hatred  of  God,  but  we  hold  them  generally,  almost 
universally,  as  our  inferiors  by  their  own  nature."3 
Levavasseur,  another,  says :  "  In  times  past,  as  now, 
it  seems  that  the  negro  race,  left  to  themselves,  can- 
not arrive  at  civilization."4 

§  27.  In  this  opinion  of  the  mental  inferiority  of 
the  negro,  every  distinguished  naturalist  agrees. 
We  have  already  seen  that  most  of  them  agree  as 
to  their  physical  inferiority  in  the  size  of  the  brain. 
To  those  already  named,  we  might  add  White,  Bory 
St.  Vincent,  Long,  and  last,  in  order  of  time,  Count 
A.  de  Gobineau,  whose  much-praised  "  Essai  sur 
1'Inegalite  des  races  humaines,"  I  regret  I  have  not 
been  able  to  examine.  Prichard,  it  is  true,  who,  in 
maintaining  the  unity  of  the  race,  sees  fit  to  become, 
very  unnecessarily,  the  defender  and  apologist  of  the 
negro,  yet  even  he  is  forced  to  admit  that,  "  by  the 
animality  or  degradation  of  the  forms  of  the  pelvis, 
peculiar  to  the  negress  and  the  Bushman  or  Hotten- 
tot, is  implied  an  approach  towards  the  forms  of 
these  latter  species"  (the  chimpantsi  and  ourang- 
outang).5  The  great  Humboldt,  in  his  late  "Cosmos," 
while  declining  virtually  to  enter  the  lists  on  the 
question  of  monogeny,  without  discussing  the  ques- 

1  See  Types  of  Mankind,  50 ;  Negromania,  430. 
•  On  Nat.  Hist,  of  Man  (Negromania,  369). 
8  De  PEsclavage  et  des  Colonies,  12. 

4  L'Esclavage  de  la  race  noire,  77,  80,  84. 

5  Nat.  Hist,  of  Man,  125. 


WHAT   IS    SLAVERY.  33 

tion,  "repels  the  assumption  of  superior  and  inferior 
races  of  men."1  Even  so  great  an  authority  must 
yield  to  stubborn  facts. 

§  28.  Even  the  champions  of  the  negro's  freedom, 
who  have  distinguished  themselves  by  their  zeal, 
both  in  England  and  America,  are  forced  to  admit 
the  apparent  inferiority,  and  to  ascribe  the  same  to 
the  degradation  of  slavery  and  other  causes,  which, 
in  their  opinion,  if  removed,  would  enable  the  negro 
to  assert  and  prove  his  equality.  Says  Buxton  : 
"  I  beg  to  call  attention  to  certain  indications,  faint 
no  doubt,  but,  considering  the  difficulties  and  impedi- 
ments to  improvement  in  Africa,  encouraging  indi- 
cations, of  a  capability  for  better  things."2  Says 
Armistead,  in  a  late  elaborate  "  Tribute  for  the 
Negro  :"  "  The  present  apparent  inferiority  of  the 
negro  race  is  undoubtedly  attributable,  in  a  great 
measure,  to  the  existence  of  the  slave-traffic  in 
Africa."3  Wilberforce  admitted  the  same  fact,  and 
referred  it  to  the  same  cause.4 

§  29.  The  American  philanthropists  have  been 
equally  constrained  to  acknowledge  the  apparent 
inferiority,  and  equally  industrious  in  accounting 
therefor.5  "  The  Caucasian,"  says  Theodore  Parker, 

1  Vol.  i,  p.  358  (Harper's  edition).     As  to  the  correctness  of 
this  translation,  see  Indigenous  Races  of  Man,  405,  et  seq. 
3  The  Slave-Trade  and  Remedy,  by  T.  F.  Buxton,  p.  459. 

3  A  Tribute  for  the  Negro,  by  Wilson  Armistead,  Manchester, 
1848,  p.  19. 

4  Appeal  in  behalf  of  the  Negro  Slaves  of  the  "West  Indies. 

5  Channing  on  Slavery,  ii,  66 ;  Bacon  on  Slavery,  p.  171 ;  Miss 
Beecher  on  the  Slave  Question,  143  ;  Godwin's  Lectures  on  Sla- 
very, 153-156  ;  Freeman's  Plea  for  Africa,  18 ;  Andrews  on  Sla- 
very and  the  Slave-Trade,  in  the  United  States,  21 ;  Mrs.  Childs's 

3 


34  LAW   OF   NEGRO    SLAVERY. 

"  differs  from  all  other  races.  He  is  humane,  he  is 
civilized,  he  progresses.  He  conquers  with  his  head 
as  well  as  with  his  hand.  It  is  intellect,  after  all, 
that  conquers,  not  the  strength  of  a  man's  arm.  The 
Caucasian  has  often  been  the  master  of  other  races, 
never  their  slave.  Republics  are  Caucasian.  All 
the  great  sciences  are  of  Caucasian  origin.  All  in- 
ventions are  Caucasian.  Literature  and  romance 
come  of  the  same  stock."1  It  will  be  noticed,  that 
among  these  names,  cited  and  quoted,  no  slaveholder 
appears,  not  even  that  of  Mr.  Jeiferson,  who  is  so 
often  quoted  as  authority  against  the  slaveholder.2 
We  might  add  the  names  of  many  men  whose  intel- 
lects were  too  bright  to  be  dimmed  by  interest,  and 
whose  hearts  were  too  pure  to  be  closed  to  the  claims 
of  humanity.  We  refer  to  Dew,  Harper,  Campbell, 
Calhoun,  Simms,  Hammond,  Fletcher,  Priest,  and 
others. 

§  30.  Our  conclusion  from  this  investigation  must 
be,  that  the  negro  race  is  inferior  mentally  to  the 
Caucasian.  Whether  or  not  this  inferiority  is  the 
result  of  centuries  of  barbarism  or  of  the  degrading 
effects  of  a  state  of  slavery,  we  will  presently  briefly 
inquire.  Certain  it  is  that  the  negro,  as  we  now  find 

Appeal,  155.  She  says,  p.  189,  "The  opinion  that  negroes  are 
naturally  inferior  in  intellect,  is  almost  universal  among  white 
men."  See  also  Second  Annual  Hep.  of  New  England  Anti-Sla- 
very Society,  pp.  18, 19, 22, 23;  and  Fourth  Annual  Rep.  of  Mass. 
Anti-Slavery  Society,  p.  28. 

1  Quoted  by  Nott,  Types  of  Mankind,  462. 

"  See  his  Notes  on  Virginia,  where  he  says,  "  Never  yet  could  I 
find  that  a  black  had  uttered  a  thought  above  the  level  of  plain 
narration ;  never  saw  even  an  elementary  trait  of  painting  or  sculp- 
ture." 


WHAT   IS    SLAVERY.  35 

him,  whether  in  a  state  of  bondage  or  in  his  native 
wilds,  exhibits  such  a  weakness  of  intellect  that,  in 
the  words  of  Puffendorf,  "  when  he  has  the  fortune 
to  live  in  subjection  to  a  wise  director,  he  is,  with- 
out doubt,  fixed  in  such  a  state  of  life  as  is  most 
agreeable  to  his  genius  and  capacity."1 

§  31.  The  prominent  defect  in  the  mental  organi- 
zation of  the  negro,  is  a  want  of  judgment.  He 
forms  no  definite  idea  of  effects  from  causes.  He 
cannot  comprehend,  so  as  to  execute  the  simplest 
orders,  unless  they  refresh  his  memory  as  to  some 
previous  knowledge.2  He  is  imitative,  sometimes 
eminently  so,  but  his  mind  is  never  inventive  or 
suggestive.3  Improvement  never  enters  into  his 
imagination.  A  trodden  path,  he  will  travel  for 
years,  without  the  idea  ever  suggesting  itself  to  his 
brain,  that  a  nearer  and  better  way  is  present  before 
him  ;  what  he  has  seen  another  do,  he  can  do  also, 
and  practice  will  make  him  perfect  in  its  execution, 
but  the  discovery  of  a  better,  easier,  or  cheaper  pro- 

1  Law  of  Nature  and  Nations,  Bk.  Ill,  ch.  ii,  §  8. 

2  Ca.  da  Mosto,  the  earliest  of  modern  European  travellers  in 
Africa  (1454),  says,  "Although  very  ignorant  and  awkward  in 
going  about  anything  which  they  have  not  been  accustomed  to,  yet 
in  their  own  business  which  they  are  acquainted  with,  they  are  as 
expert  as  any  Europeans  can  be."    Astley's  Voyages,  vol.  i,  p.  582. 

3  The  following  is  from  the  Keport  of  one  of  the  visitors  to  the 
schools,  including  white  and  negro  children  :  "  I  have  uniformly 
found  the  blacks  inferior  to  the  whites,  in  every  branch  of  educa- 
tion requiring  mental  effort.     In  writing  and  painting  they  bear  a 
tolerable  comparison  j  but  in  reading,  grammar,  geography,  and 
more  particularly  arithmetic,  requiring  the  greatest  mental  effort, 
they  are  vastly  below  the  level  of  a  comparison."     Extracted  from 
Paulding,  on  Slavery  in  the  United  States,  279,  280. 


36  LAW  OF   NEGRO   SLAVERY. 

cess  never  engages  his  thoughts.  Faustin  I,  can 
imitate  with  ludicrous  nicety  all  the  pageantry  of 
the  Grand  Emperor,  but  when  his  model  ceases,  his 
genius  has  executed  its  utmost.1  This  mental  defect, 
connected  with  the  indolence  and  want  of  foresight 
of  the  negro,  is  the  secret  of  his  degradation.  The 
imitative  faculty  makes  the  negro  a  good  musician, 
yet  he  never  originates  a  single  air,  nor  invents  a 
musical  instrument.2  This  faculty,  combined  with 
memory,  sometimes  might  distinguish  him  in  the 
acquisition  of  language,  yet  he  never  would  originate 
an  alphabet  or  distinguish  the  parts  of  speech.3  The 
earlier  training  of  the  child  at  school  exercises 
largely  and  depends  much  upon  memory  and  imita- 
tion. Hence  negro  children  would  learn  with  equal 
facility  with  the  white,  during  the  first  essays  in  the 
school-room,  but  so  soon  as  education  reaches  the 
point  where  reason  and  judgment  and  reflection 
are  brought  into  action,  the  Caucasian  leaves  the 
negro  groping  hopelessly  in  the  rear.4 

§  32.  Our  next  inquiry  is  as  to  the  moral  cha- 
racter of  the  negro  race,  and  how  far  that  character 
adapts  them  for  a  state  of  slavery.  The  degraded 
situation  of  the  barbarous  tribes  of  Africa  is  well 
attested  by  every  observer.  So  debased  is  their 

1  Travellers  inform  us  that  everything  in  Liberia  is  a  mere  tran- 
script of  American  ideas.  See  Bowen's  Central  Africa. 

3  Nat.  Hist,  of  Human  Species,  &c.,  by  Lieut.-Col.  Smith  (Lon- 
don, 1848),  p.  190.  8  Types  of  Mankind,  456. 

4  Xat.  Hist,  of  Human   Species,  by  Lieut.-Col.    Smith,  191 ; 
Lyell's  Second  Visit  to  United  States,  vol.  i,  p.  105.     Mrs.  Stowe 
admits  this  fact,  but  seeks  to  account  for  it  on  different  principles. 
Key  to  Uncle  Tom's  Cabin,  Pt.  I,  ch.  xii. 


WHAT   IS   SLAVERY.  37 

condition  generally,  that  their  humanity  has  been 
even  doubted.  It  is  not  of  the  negro  in  this  state  of 
barbarism  alone,  that  we  should  inquire.  The  deve- 
lopment of  his  moral  character,  when  in  contact 
with  civilization,  and  under  the  fostering  care  of 
religious  instruction,  is  also  to  be  considered.  View- 
ing him  then  in  both  these  relations,  we  find,  first, 
that  the  negro  race  are  habitually  indolent  and  in- 
disposed to  exertion,  whether  seen  in  their  native 
country,  according  to  the  concurrent  testimony  of 
all  travellers,1  or  in  the  condition  of  slavery  in 
America,  or  as  free  negroes  after  emancipation.2 
With  reference  to  the  first  fact,  we  are  told  that  the 
hot  climate  and  the  free  productions  of  the  earth,  on 
the  one  hand  enervate,  and  on  the  other  take  away 
all  stimulus  for  exertion.  With  reference  to  the 
second,  that  it  is  the  degrading  effect  of  slavery, 
leaving  no  hope  to  the  slave.  With  reference  to  the 
third,  that  it  is  the  prejudice  of  color  that  depresses 
the  spirits  of  the  free  negro  of  America.  We  will 
not  stop  to  inquire  as  to  the  truth  of  these  apologies. 
One  thing  is  certain,  that  the  ingenuity  of  the  phi- 
lanthropist is  severely  taxed  in  behalf  of  the  negro 

1  I  am  aware  that  some  expressions  may  be  found  in  the  works 
of  travellers,  varying  from  the  general  current.  These  may  serve 
well  the  purposes  of  fanatics;  but  to  the  mind  of  those  accustomed 
to  decide  upon  testimony,  they  make  no  impression. 

3  "The  blacks  living  in  London  are  generally  profligate.  .  .  . 
Being  friendless  and  despised,  on  account  of  their  complexion, 
and  too  many  of  them  being  really  incapable  of  any  useful  occu- 
pation, they  sink  into  abject  poverty."  Walstron's  Essay  on  Colo- 
nization. As  to  the  free  blacks  of  the  North,  see  Paulding,  on 
Slavery  in  United  States,  p.  66.  As  to  the  Liberians,  see  Prelimi- 
nary Sketch,  ch.  xvii. 


38  LAW  OF   NEGRO   SLAVERY. 

race,  for  wherever  found  they  exhibit  the  same  cha- 
racteristics, and  the  reasons  are  obliged  to  be  varied 
to  suit  the  varying  circumstances.  Perhaps  it  is 
but  right  to  remark,  that  this  enervating  effect  of 
climate  has  never  proved  so  powerful  upon  the 
white  race,  physically  less  prepared  to  withstand  it; 
that  slavery  did  not  to  this  extent  destroy  the  spirit 
of  the  Israelites  in  Egypt,  nor  of  the  villains  in 
England,  nor  of  the  homines  proprii  of  Germany.1 
And  that  in  Hay ti,  in  Jamaica,  in  Brazil,  and  New 
Granada,  no  such  prejudice  of  color  exists,  and  yet 
notwithstanding  the  variant  testimony  of  prejudiced 
observers,  there  can  be  no  question  that  neither  the 
enjoyment  of  liberty,  nor  the  ingenuity  of  British 
statesmanship,  has  been  sufficient  to  infuse  energy 
and  activity,  where  the  Maker  stamped  indolence 
and  sloth.2 

§  33.  In  connection  with  this  indolent  disposition, 
may  be  mentioned  the  want  of  thrift  and  foresight 
in  the  negro  race.  When  enslaved,  there  is  no  great 
necessity  for  the  development  of  this  faculty,  and 
this  may  account  for  its  absence,  but  unfortunately 
for  the  friends  of  negro  equality,  it  displays  itself 
more  palpably  in  the  free  negro  than  in  the  slave.3 
We  speak  of  course  of  the  general  character,  admit- 

1  See  remarks,  on  this  point,  of  J.  K.  Paulding,  in  his  Treatise 
on  Slavery  in  the  United  States,  p.  69,  et  seq. 

2  See  Wallon,  de  1'Esclavage  dans  les  Colonies,  81.     For  a  faith- 
ful representation  of  the  effects  of  liberty  upon  the  Haytians,  and 
the  inhabitants  of  French  Guiana,  see  Levavasseur's  Esclavage  de  la 
race  noire,  p.  22,  et  seq.  j  Schoelcher's  Colonies  Etrangeres,  vol.  ii, 
«  Haiti." 

3  See  Walstron's  Essay  on  Colonization,  as  above ;  Paulding,  on 
Slavery  in  the  United  States,  59. 


WHAT    IS   SLAVERY.  39 

ting  the  existence  of  individual  exceptions.  In  their 
native  wilds,  with  a  most  productive  soil,  they  have 
recourse  to  the  "  most  revolting  food,  as  frogs,  li- 
zards, serpents,  spiders,  the  larvaa  of  insects,  &c. 
&C."1  In  the  free  West  India  Islands,  the  same  in- 
dolence appears,  and  is  excused  on  account  of  cli- 
mate, &c.  And,  even  in  the  cold  climate  of  the 
Northern  States,  where  the  apology  fails  to  apply, 
the  result  of  the  labored  efforts  of  philanthropists, 
aided  by  the  sympathies  of  the  whole  community,  is 
"  idleness,  insolence,  and  profligacy."2 

§  34.  The  negro  is  not  malicious.  His  disposition 
is  to  forgive  injuries,  and  to  forget  the  past.3  His 
gratitude  is  sometimes  enduring,  and  his  fidelity 
often  remarkable.  His  passions  and  affections  are 
seldom  very  strong,  and  are  never  very  lasting. 
The  dance  will  allay  his  most  poignant  grief,4  and"" 
a  few  days  blot  out  the  memory  of  his  most  bitter 
bereavement.  His  natural  affection  is  not  strong, 
and  consequently  he  is  cruel  to  his  own  offspring, 
and  suffers  little  by  separation  from  them.5  He  is 
superstitious  and  reverential,  and  consequently  is 
very  susceptible  of  religious  impressions,  exhibiting, 
in  many  individual  instances,  a  degree  of  faith  un- 
surpassed, and  a  Christian  deportment  free  from 

1  Lawrence's  Lectures  on  Slavery,  324. 

2  Paulding,  on  Slavery  in  the  United  States,  66,  et  seq. 

3  Channing,  on  Slavery ;  Candler's  Brief  Notices  of  Hayti. 

*  It  is  a  curious  fact,  that  upon  one  of  the  monuments  in  Egypt, 
a  company  of  negro  slaves  are  represented  in  a  dance,  1300  years 
before  Christ. 

5  Lawrence,  Lectures  on  Slavery,  325 ;  Cassagnac's  Voyage  aux 
Antilles,  vol.  i,  pp.  167,  169,  235. 


LAW  OF   NEGRO   SLAVERY. 


blemish.  He  is  passive  and  obedient,  and  conse- 
quently easily  governed.1 

§  35.  The  negro  is  naturally  mendacious,  and 
as  a  concomitant,  thievish.3  His  apologists  have 
referred  these  traits  to  his  bondage,  and  have  in- 
stanced the  Israelites  borrowing  the  Egyptian  gold, 
and  the  cases  of  Europeans  enslaved  by  the  barba- 
rians in  Africa,  to  show  that  such  is  the  effect  of 
slavery.  Unfortunately,  however,  the  prisons  and 
court  records  of  the  non-slaveholding  States  show 
that  enfranchisement  has  not  taught  the  negro  race 
honesty,  nor  caused  them  to  cease  from  petty  pil- 
fering.3 And  the  census  of  Liberia  shows  the  same 
disposition,  as  exhibited  by  their  criminal  court 
calendar.4 

§  36.  Another  striking  trait  of  negro  character  is 
lasciviousness.  Lust  is  his  strongest  passion ;  and 
hence,  rape  is  an  offence  of  too  frequent  occurrence. 
Fidelity  to  the  marriage  relation  they  do  not  under- 
stand and  do  not  expect,  neither  in  their  native 
country  nor  in  a  state  of  bondage.5  The  latter,  to 

1  See  A  Tribute  for  the  Negro,  163 ;  Nat.  Hist,  of  Human 
Species,  Lieut.-Col.  Smith,  196. 

a  Ca.  da  Mosto  says,  "They  are  liars  and  cheats;"  Astley's  Voy- 
ages, vol.  i,  p.  582. 

8  Paulding,  on  Slavery  in  the  United  States,  59.  Judge  Conrad, 
in  his  Plea  for  the  South  (1836),  says,  "The, free  blacks  are,  in 
the  mass,  the  most  ignorant,  voluptuous,  idle,  vicious,  impoverished, 
and  degraded  population  of  this  country.  .  .  .  They  have  sunk 
lower  than  the  Southern  slaves,  and  constitute  but  a  melancholy 
proof  of  the  advantages  of  abolition."  p.  230. 

*  Of  373  offences,  308  were  for  larceny  of  different  degrees.  See 
Census  of  1845. 

5  See  Lawrence's  Lectures  on  Slavery,  pp.  325,  326,  for  proofs 
as  to  their  debauchery,  sensuality  and  cruelty. 


WHAT   IS   SLAVERY.  41 

some  extent,  is  the  fault  of  the  law.  Yet,  colonized 
on  their  native  shores,  the  same  disregard  for  the 
marriage  tie  is  noticed,  and  regretted  by  their 
friends. 

§  37.  Let  us  now  briefly  notice  the  positions  of 
those  who  deny  the  inferiority  of  the  negro  race. 
When  the  fact  is  stated  that,  living  for  centuries  in 
contact  with  civilization,  yet  the  negro  tribes  of 
Africa  have  never  received  or  exhibited  its  influ- 
ences ;  that  they  never  have  produced  a  single 
example  of  organized  government ;  that  they  have 
never  exhibited  the  first  evidence  of  a  self-evolving 
civilization,  not  even  in  the  formation  of  an  alpha- 
bet, a  hieroglyphic,  or  a  symbol,  much  less  a  gram- 
matical language,  we  are  referred  to  Egypt,  the 
cradle  of  literature  and  the  sciences,  and  trium- 
phantly asked  if  Africa  was  not  the  very  fountain 
whence  all  the  streams  of  enlightenment  flow  ;  and 
the  authority  of  Herodotus  is  invoked,  to  show  that 
the  ancient  Egyptians  were  of  "  a  black  complexion 
and  woolly-haired."  Cuvier,  Morton,  Gliddon,  and 
others,  versed  in  Egyptian  antiquities,  have  proven 
so  many  errors  in  the  account  that  the  "  Father  of 
History"  has  given  of  the  land  of  the  Nile,  as  to 
discredit  his  testimony,  and  to  cause  doubts  even  as 
to  his  having  ever  visited  the  country.1  That  there 
were  negroes  in  Egypt,  as  slaves,  at  that  period, 
there  can  be  no  doubt,  but,  that  the  ruling  castes  of 

1  Types  of  Mankind ;  Morton's  Crania  Egyptiaca,  22-29  j  In- 
dustrial Resources  of  the  South,  vol.  ii,  p.  200,  et  seq.  Dr.  Pri- 
chard,  himself,  seems  to  have  little  confidence  in  the  accuracy  of 
Herodotus;  see  Analysis  of  Egyptian  Mythology  (London,  1838), 
p.  374;  and  Examination,  &c.,  of  Egyptian  Chronology,  p.  17. 


42  LAW  OF   NEGRO   SLAVERY. 

the  Egyptians  were  of  the  Caucasian  race  is  equally 
free  from  difficulty.1  Was  there  no  other  evidence? 
the  ten  thousand  mummies,  that  have  been  ex- 
humed and  examined,  and  the  numerous  deeds,  de- 
scribing the  persons  of  the  contractor,  are,  every  one, 
witnesses  to  disprove  the  assertion  of  the  negro  origin 
of  the  Egyptians.2  The  lower  castes  (herdsmen, 
agriculturists,  and  artisans),  were  very  numerous, 
and  many  of  these,  doubtless,  were  negroes.  In  fact, 
it  was  the  boast  of  one  of  the  Pharaohs  that  no 
native  Egyptians  had  placed  a  brick  in  one  of  the 
huge  pyramids  that  he  built.  Herodotus  being  igno- 
rant of  the  language  of  the  Egyptians,  and  not  very 
accurate  in  his  observations,  may  have  thus  mistaken, 
the  numerous  for  the  ruling  caste.  This  interesting 
question  opens  an  inviting  field  for  digression.  We 
must  content  ourselves  with  referring  the  curious  to 
the  authorities  relied  on  for  our  conclusions. 

§  38.  The  uncertain  and  as  yet  unlocated  Ethiopia 
of  the  ancients,  is  also  referred  to  as  an  example  of 
negro  civilization.3  When  discovered,  and  its  monu- 
ments, and  people,  and  works  of  art,  and  records  of 
history,  are  brought  before  the  world,  we  will  be 
called  on  to  examine  the  witness,  and  determine  his 

1  See  Industrial  Resources  of  the  South,  vol.  ii,  p.  200 ;  Types 
of  Mankind,  passim,  and  Negromania,  108 ;  Lawrence's  Lectures 
on  Slavery,  229-237;  see  Prichard's  Analysis  of  Egyptian  Mytho- 
logy (London,  1838),  p.  374. 

3  Authorities  cited  above. 

3  The  first  book  of  the  Iliad  comes  as  near  locating  as  any  other 
authority,  where  the  mother  of  Achilles  tells  him  that  Jupiter  is 
"not  at  home,"  having  set  off  with  all  the  gods  "to  feast  with  the 
excellent  Ethiopians." 


WHAT   IS   SLAVEKY.  43 

competency  and  credibility.  From  the  examination 
I  have  been  able  to  give  this  question,  I  am  disposed 
to  believe,  that  with  the  ancients  Ethiopia  included 
all  unknown  or  little  known  and  unexplored  coun- 
tries. It  certainly  included  India  and  Central  Africa. 
§  39.  The  ancient  kingdom  of  Meroe  has  also 
been  referred  to  sometimes  as  evidence  of  a  negro 
self-sustaining  and  self-evolving  civilization.  The 
Zerah  of  the  Bible  (2  Chron.  14  :  9),  is  supposed  to 
have  been  one  of  its  kings,  and  its  high  civilization 
and  great  power  are  almost  beyond  question.  Its 
situation,  at  the  head  of  the  Nile,  in  the  midst  of 
Ethiopia,  is  referred  to  as  positive  proof  of  the  negro 
type  of  its  inhabitants.  Much  learning  and  research 
have  been  exhibited  in  tracing  its  history  and 
fathoming  its  fate.1  Into  this  field  we  are  forbidden 
to  go.  To  conclusions  alone  we  must  address  our- 
selves, and  since  the  labors  of  the  Prussian  scientific 
mission,  many  of  the  former  opinions  of  scientific 
men  have  been  proven  fallacious.  Chev.  Lepsius 
states  the  fact  to  be  now  undoubted,  that  the 
Meroites,  the  people  who  built  the  Pyramids,  and 
left  other  undoubted  traces  of  civilization,  were  a  red 
people,  and  of  the  Caucasian  race.  He  adds,  that 
there  is  not  to  be  drawn  from  Meroe,  the  slightest 
trace  of  an  Ethiopian  civilization  properly  so  called.2 
For  many  years,  and  during  her  prosperity,  Meroe 
was  an  Egyptian  dependency.  So  soon  as  she 

1  Cf.  Heeren.  Ideen.  vol.  i,  p.  385,  et  seq.  Oxford  trans. ;  An- 
thon's  Class.  Diet.  "Meroe/'  and  authorities  there  cited;  Morton's 
Crania  Egyptiaca. 

3  Letter  to  John  Pickering,  translated  in  Types  of  Mankind,  pp. 
203,  204. 


44  LAW  OF  NEGRO   SLAVERY. 

became  independent,  and  was  "  cut  off  from  Egyp- 
tian blood  and  civilization,  the  influx  of  negroes 
deteriorated  her  people,  until,  by  the  fifth  century 
after  Christ,  she  sank  amid  the  billows  of  surround- 
ing African  barbarism,  mentally  and  physically  ob- 
literated forever."  Were  these  truths  doubtful  before, 
the  bas-reliefs  upon  her  monuments,  and  the  in- 
scriptions upon  her  pyramids,  would  dispel  these 
doubts  forever.1 

§  40.  Few  have  the  hardihood  to  refer  to  Hayti, 
Jamaica,  or  even  Liberia,  as  successful  experiments 
of  negro  civilization.  Their  apologists  beg  for  time, 
that  the  baneful  influences  of  former  slavery  may  be 
removed.  Be  it  so.  The  reaction  may  come,  but 
the  fate  of  Meroe  checks  the  hope  of  the  philan- 
thropist. 

§  41.  But  passing  from  communities,  when  we 
ask  for  individual  instances  of  superior  intellect  de- 
veloped in  the  negro,  we  are  referred  to  Origen, 
Cyprian,  St.  Augustine,  Tertullian,  Clemens  Alex- 
andrinus,  and  Cyril,  among  the  fathers  of  the  Church, 
to  Hanno  and  Hannibal  among  warriors,  and  to 
Terence  and  Phaedrus  among  poets,  as  examples  of 
strongly  marked  genius  in  the  negro  race.  The 
reference  excites  a  smile,  and  the  answer  is  already- 
given  in  the  fact,  that  the  people  inhabiting  the 
northern  portion  of  Africa,  along  the  coast  of  the 
Mediterranean  Sea,  are  as  distinct  from  the  negro 
proper,  as  the  Caucasian  origin  of  the  one  should 
make  them  different  from  the  negro  origin  of  the 
other.  African  and  negro  are  not  synonymous,  a 
fact  which  these  philanthropists  seem  to  forget. 

1  Types  of  Mankind,  pp.  259-261. 


WHAT   IS   SLAVERY.  45 

§  42.  In  a  work  lately  issued  under  the  auspices 
of  British  abolitionists,  entitled  "  A  Tribute  for  the 
Negro,"1  all  the  examples  of  negro  intellect,  which 
the  research  and  industry  of  the  author  could  collect, 
are  brought  together,  and  short  memoirs  are  given 
of  some  threescore  of  the  most  remarkable.  This 
collection  is  drawn  from  the  entire  negro  family  for 
eighteen  hundred  years,  in  all  portions  of  the  world, 
and  the  meagreness  of  the  material  could  not  be 
better  proven,  than  by  the  book  before  us.  Were 
it  proper,  we  would  be  amused  by  a  review  of  these 
lives,  many  of  whose  highest  and  only  achievement 
was  "  moving  in  the  first  circles  in  society  in  Great 
Britain."2  For  excellence  in  poetry  we  have  Phillis 
Wheatley,  whose  productions  Mr.  Jefferson  pro- 
nounced to  be  "  beneath  criticism."  In  composition, 
is  Gustavus  Vasa,  whose  only  work  was  a  narrative 
of  himself  (by  whom  written,  or  revised  we  know 
not),  which  would  hardly  give  credit  to  a  schoolboy 
in  his  teens.  Among  warriors,  is  Toussaint  L'Ouver- 
ture,  who  exhibited  perhaps  more  energy,  more 
treachery,  and  less  principle,  than  any  negro  whose 
memoirs  are  included  in  the  volume.  Of  the  three- 
score selected  for  immortality  in  this  negro  Thesau- 
rus, four-fifths  were  developed  under  the  "  baneful 
influences  of  slavery;"  having  been  at  some  time, 
and  generally  for  the  most  part  of  their  lives,  slaves. 
Of  the  remaining  one-fifth,  very  few  if  any  belong  to 
those  African  tribes  that  have  supplied  the  Ameri- 

1  By  Wilson  Armistead,  1848  (Manchester  and  London).  This 
book  is  but  an  enlargement  of  a  work  published  at  Paris,  by  H. 
Gregoire,  Bishop  of  Blois,  in  1808,  entitled  "De  la  Litterature  des 
Negres,"  &c.  a  Page  136. 


46  LAW   OF    NEGRO    SLAVERY. 

cans  with  slaves.  The  inference  would  seem  irre- 
sistible, from  the  testimony  of  this  volume,  that  the 
most  successful  engine  for  the  development  of  negro 
intellect  is  slavery. 

§  43.  But  were  we  without  other  witnesses  to  the 
inferiority  of  the  negro,  the  instinct  of  the  Caucasian 
would  be  of  itself  demonstration  clear.  It  is  called 
the  ^  prejudice  of  color,"  but  such  a  prejudice  is 
never  wholly  unfounded.  Intellect,  energy,  and 
moral  worth,  do  not  supplicate  but  demand  respect.1 
It  is  said  to  arise  from  their  state  of  bondage,  yet 
strange  to  say,  it  exists  where  they  were  never 
known  in  bondage,  and  is  strongest  where  no 
slavery  exists.  We  find  it  in  the  capital  of  the 
British  empire,  among  the  courteous  French,  in  the 
slaveholding  States  of  America,  and  in  those  States 
where  slavery  has  been  abolished,  but  strongest  than 
all,  in  those  States  where  negro  slavery  never  ex- 
isted.2 

§  44.  This  inquiry  into  the  physical,  mental,  and 
moral  development  of  the  negro  race,  seems  to  point 
them  clearly,  as  peculiarly  fitted  for  a  laborious 
class.  Their  physical  frame  is  capable  of  great  and 
long-continued  exertion.  Their  mental  capacity 
renders  them  incapable  of  successful  self-develop- 
ment, and  yet  adapts  them  for  the  direction  of  a 
wiser  race.  Their  moral  character  renders  them 

1  Paulding,  speaking  of  a  prudent  free  negro  at  the  North,  says, 
"  There  is  every  disposition  to  encourage  and  foster  his  efforts. 
He  is  looked  upon  as  something  remarkable,  an  exception  to  his 
kind,  a  minor  miracle."  Slavery  in  the  United  States,  67. 

3  De  Tocqueville's  Democracy  in  America;  Levavasseur,  Escla- 
vage  de  la  race  noire,  89,  et  seq. 


WHAT   IS    SLAVERY.  47 

happy,  peaceful,  contented,  and  cheerful  in  a  status 
that  would  break  the  spirit  and  destroy  the  ener- 
gies of  the  Caucasian  or  the  native  American.1 

§  45.  History  and  experience  confirm  this  conclu- 
sion. Probably  no  better  test  could  be  adopted,  to 
determine  the  adaptation  of  a  system  to  a  race, 
than  their  relative  increase  while  living  under  it.2 
Nature  has  so  constituted  the  animal  creation,  that 
when  any  portion  of  it  is  placed  in  a  position  doing 
violence  to  the  law  of  their  nature,  it  dwindles  and 
becomes  extinct.  Thus  domestication  is  destruc- 
tion to  many  animals  ferce  naturce,  while  it  perfects 
the  development  of  the  horse,  the  cow,  and  others. 
So  bondage  has  ever  proved  annihilation  to  the 
American  Indian,  whether  under  the  Spanish 
Hidalgo,3  or  the  New  England  Puritan,  or  the  Vir- 
ginia Cavalier.  What  has  been  its  effect,  in  this 
respect,  upon  the  negro  ?  The  answer  to  this  ques- 
tion is,  the  voice  of  Nature,  whether  her  law  is  vio- 
lated in  his  enslavement. 

§  46.  The  census  of  the  United  States  exhibits  a 

1  For  proof  of  their  contentment  and  happiness,  see  Cassagnac's 
Voyage  aux  Antilles,  vol.  i,  pp.  149,  155,  239. 

3  Puynode,  a  French  abolitionist,  feeling  the  importance  of 
this  view,  strives  to  show  that  slavery  diminishes  the  increase  of 
the  slave  population.  De  1'Esclavage  et  des  Colonies,  p.  35. 

3  The  Conquerors  of  the  New  World,  and  their  Bondsmen,  vol. 
ii,  p.  151,  gives  a  striking  instance  where  several  thousand  Indians 
and  fifty  negroes  were  employed  by  the  Spaniards  in  transporting 
the  timbers  for  vessels  across  the  Isthmus.  The  Indians  perished 
by  hundreds — not  a  single  negro  died.  As  early  as  1511,  the 
King  of  Spain  directs  his  Colonial  Governor  "  so  to  act,  that  the 
Indians  may  increase,  and  not  diminish,  as  in  Hispaniola."  Ibid, 
vol.  i,  p.  232. 


48  LAW  OF  NEGRO   SLAVERY. 

steady  and  remarkable  increase  in  the  slave  popula- 
tion. From  a  few  hundred  thousand,  they  now  num- 
ber more  than  four  millions;  and,  making  allow- 
ance for  emigration  and  other  causes,  the  ratio  of 
increase  is  at  least  equal  to  that  of  the  white  popu- 
lation of  the  same  States.1  On  the  contrary,  the 
increase  among  the  free  black  population  of  the 
Northern  States,  notwithstanding  the  element  of 
fugitives  from  the  South,  and  emancipated  slaves, 
shows  a  ratio  of  increase  very  inferior.2  The  Cen- 
sus of  1850  shows,  also,  the  fact,  that  the  duration 
of  life  is  greater  among  the  slaves  of  the  South, 
than  among  the  free  negroes  of  the  North.3  The 
same  unerring  testimony  also  shows,  that  there  are 
three  times  as  many  deaf  mutes,  four  times  as  many 
blind,  more  than  three  times  as  many  idiots,  and 
more  than  ten  times  as  many  insane,  in  proportion 
to  numbers,  among  the  free  colored  persons,  than 
among  the  slaves.4  The  same  is  true  of  the  free 
blacks  of  Liberia.  Notwithstanding  the  constant 
influx  from  America,  the  census  of  that  colony 

1  The  whole  number  imported  is  estimated  at  333,000.  In  1850, 
they  were  3,800,000;  see  Carey's  Slave-Trade,  Domestic  and 
Foreign,  ch.  iii;  Census  of  the  United  States  for  1850.  The  same 
is  true  as  to  the  increase  of  slaves  in  the  French  West  Indies.  See 
Cassagnac's  Voyage  aux  Antilles,  vol.  i,  p.  183 ;  Schoelcher,  Colo- 
nies Frangaises,  p.  20. 

3  The  increase  of  free  colored  persons,  from  1840  to  1850,  was 
hardly  1 }  per  cent,  per  annum  j  while  that  of  the  slaves  was  very 
nearly  3  per  cent,  per  annum.  See  Compendium  of  Seventh  Cen- 
sus, pp.  68,  87. 

3  Abstract  of  Seventh  Census,  p.  13. 

*  Ibid.  p.  26.  The  number  of  total  afflicted  is  nearly  four  times 
greater  among  the  former  than  the  latter. 


WHAT   IS   SLAVERY.  49 

shows  no  ratio  of  increase ;  but,  on  the  contrary,  for 
more  than  12,000  emigrants,  it  contains  now  a  civi- 
lized population  of  not  exceeding  8000. 

§  47.  From  the  same  observation,  we  learn  that 
the  mere  physical  development  of  the  negro  is  im- 
proved by  his  transport  and  enslavement.  As  an 
animal,  in  stature,  in  muscular  energy,  in  activity, 
and  strength,  the  negro  has  arrived  at  his  greatest 
development  while  in  slavery.1 

§  48.  In  mental  and  moral  development,  slavery, 
so  far  from  retarding,  has  advanced  the  negro  race.2 
The  intelligence  of  the  slaves  of  the  South  compares 
favorably  with  the  negro  race  in  any  country,  but 
more  especially  with  their  native  tribes.3  While,  by 
means  of  this  institution,  the  knowledge  of  God  and 
his  religion  has  been  brought  home,  with  practical 
effect,  to  a  greater  number  of  heathens  than  by  all 
the  combined  missionary  efforts  of  the  Christian 
world.  But  remove  the  restraining  and  controlling 
power  of  the  master,  and  the  negro  becomes,  at  once, 
the  slave  of  his  lust,  and  the  victim  of  his  indolence, 
relapsing,  with  wonderful  rapidity,  into  his  pristine 
barbarism.  Hayti  and  Jamaica  are  living  witnesses 
to  this  truth  ;4  and  Liberia  would  probably  add  her 

1  See  notes  to  preceding  section. 

8  See  the  pertinent  remarks  of  Lawrence,  in  his  Natural  History 
of  Man,  pp.  325,  326.  This  fact  is  admitted,  in  A  Tribute  for 
the  Negro,  pp.  151,  152,  153;  see  also  Cassagnac's  Voyage  aux 
Antilles,  vol.  i,  pp.  240,  246. 

8  Levavasseur,  Esclavage  de  la  race  noire,  77. 

4  See  Cassagnac's  Voyage  aux  Antilles,  vol.  ii,  283 ;  Levavas- 
seur, Esclavage  de  la  race  noire,  p.  22,  et  seq.,  43  et  seq. ;  espe- 
cially the  extract  from  an  eye-witness,  in  Jamaica,  M.  Mollien, 
both  before  and  after  the  Act  of  Emancipation,  pp.  46;  47,  and  48; 
4 


50  LAW  OF   NEGKO    SLAVEKY. 

testimony,  were  it  not  for  the  fostering  care  of  philan- 
thropy, and  the  annual  leaven  of  emancipated 
slaves.1 

§  49.  The  history  of  Africa  is  too  well  known  to 
require  of  us  an  argument  or  an  extended  notice,  to 
show,  that  left  to  themselves,  the  negro  races  would 
never  arrive  at  any  high  degree  of  civilization.  In 
the  words  of  an  intelligent  French  writer  :  "  Ni  les 
sciences  de  1'Egypte,  ni  la  puissance  commerciale  de 
Carthage,  ni  la  domination  des  Remains  en  Afrique, 
n'ont  pu  faire  penetrer  chez  eux  la  civilisation."3 
We  have  neither  space  nor  inclination  to  prove  the 
fact,  well  known  to  naturalists  and  ethnologists,  that 
the  Abyssinians  and  others,  exhibiting  some  faint 
efforts  at  civilization,  are  not  of  the  true  negro  race, 
but  are  the  descendants  of  the  Arabs  and  other  Cau- 
casian tribes.8 

While  this  fact  may  be  admitted,  we  are  told  that 
after,  by  means  of  slavery  and  the  slave-trade,  the 
germs  of  civilization  are  implanted  in  the  negro,  if 
he  is  then  admitted  to  the  enjoyment  of  liberty,  he 
is  capable  of  arriving  at  a  respectable  degree  of  en- 
lightenment. Charles  Hamilton  Smith,  an  English- 
man, and  an  acute  observer,  says,  "  They  have 
never  comprehended  what  they  have  learned,  nor 

see  also  Southern  Quarterly  Review,  vol.  xii,  p.  91,  an  able  and 
dispassionate  article  by  Judge  Campbell,  of  the  Supreme  Court  of 
the  United  States. 

1  Nott  &  Gliddon's  Types  of  Mankind,  402,  see  Prel.  Sketch. 

3  Levavasseur,  Esclavage  de  la  race  noire,  77 ;  see  similar  views 
of  Paulding,  on  Slavery  in  the  United  States,  70. 

3  Chas.  H.  Smith's  Nat.  History  of  Human  Species,  &c.,  196 ; 
Levavasseur,  Esclavage  de  la  race  noire,  77. 


WHAT   IS   SLAVERY.  51 

retained  a  civilization  taught  them  by  contact  with 
more  refined  nations,  as  soon  as  that  contact  had 
ceased."1  The  emancipated  slaves  of  the  French  and 
English  West  Indies,  have  corroborated  this  state- 
ment. Hayti,  once  "  la  plus  belle  colonie"  of  France, 
despite  the  apologies  made  for  her  excesses  is,  to-day, 
fast  retrograding  to  barbarism.  Jamaica,  and  the 
other  English  islands,  notwithstanding  the  care  and 
deliberation  to  avoid  the  shock  of  too  sudden  liberty, 
have  baffled  the  skill  and  ingenuity  of  the  master 
minds  of  the  British  government.  In  a  preliminary 
historical  sketch,  we  have  examined  the  facts  in 
detail.  The  important  truth  is  before  us  from  his- 
tory, that  contact  with  the  Caucasian  is  the  only 
civilizer  of  the  negro,  and  slavery  the  only  condition 
on  which  that  contact  can  be  preserved.2 

§  50.  The  history  of  the  negro  race  then  confirms 
the  conclusion  to  which  an  inquiry  into  the  negro 
character  had  brought  us :  that  a  state  of  bondage, 
so  far  from  doing  violence  to  the  law  of  his  nature, 
develops  and  perfects  it ;  and  that,  in  that  state,  he 
enjoys  the  greatest  amount  of  happiness,  and  arrives 
at  the  greatest  degree  of  perfection  of  which  his 
nature  is  capable.  And,  consequently,  that  negro 
slavery,  as  it  exists  in  the  United  States,  is  not  con- 
trary to  the  law  of  nature.  Whenever  the  laws 
regulating  their  condition  and  relations  enforce  or 
allow  a  rigor,  or  withdraw  a  privilege  without  a  cor- 
responding necessity,  so  far  they  violate  the  natural 

1  Nat.  Hist,  of  Human  Species,  its  Typical  Forms,  &c.,  196. 

3  Paulding,  on  Slavery  in  the  United  States,  271,  272.  "  No 
two  distinctly  marked  races  can  dwell  together  on  equal  terms." 
Types  of  Mankind,  by  Nott  &  Gliddon,  p.  79. 


52  LAW  OF  NEGRO   SLAVERY. 

law,  and  to  removal  of  such  evils  should  be  directed 
the  efforts  of  justice  and  philanthropy.  Beyond 
this,  philanthropy  becomes  fanaticism,  and  justice 
withdraws  her  shield. 

That  the  system  places  the  negro  where  his 
natural  rights  may  be  abused,  is  true ;  yet  this  is  no 
reason  why  the  system  is  in  itself  wrong.  In  the 
words  of  an  enlightened  cotemporary,  "  It  becomes 
us  then  to  estimate  the  value  of  the  declamations  of 
those  who  oppose  the  institution  of  slavery  in  the 
Antilles  and  the  United  States,  on  account  of  the 
partial  abuses  which  sometimes  happen.  Judicial 
records  are  filled  with  processes  for  adultery ;  yet  we 
should  not,  for  that,  destroy  marriage.  Every  day 
our  tribunals  visit  with  severity  parents  who  abuse 
their  children,  yet  we  would  not,  for  that,  abolish 
the  paternal  power.  Every  system  has  its  abuses 
and  its  excesses.  It  becomes  us  to  correct  the  ex- 
cess, punish  the  abuse,  and  ameliorate  the  system. 
If  we  should  deliberately  compare  the  evils  of  colo- 
nial slavery,  with  its  beneficial  effects,  in  civilization, 
agriculture,  and  commerce,  we  would  be  quickly 
convinced  upon  which  side  the  balances  would  fall."1 

1  Cassagnac's  Voyage  aux  Antilles,  vol.  ii,  p.  292. 


CHAPTER  II. 

SLAVERY  VIEWED  IN   THE   LIGHT   OF   REVELATION. 

§  51.  WE  have  examined  the  question  of  the  con- 
sistency of  negro  slavery  with  the  law  of  nature, 
outside  of  revelation.  But  the  law  of  nature  is  the 
will  of  God,  "  summa  ratio  in  Deo  existens."1  To 
be  content,  in  searching  for  that  will,  without  open- 
ing the  book  of  His  Revelation,  would  be  unbecoming 
the  Christian  philosopher.  I  feel  compelled,  there- 
fore, to  enter  upon  the  field,  so  much  more  fitting  to 
the  theologian,  and  to  give  a  condensed  statement  of 
the  Biblical  argument  on  either  side  of  this  question. 
The  necessity  of  the  investigation  does  not  require 
the  extended  and  learned  research  which  others 
have  bestowed.  I  shall  not,  therefore,  stop  to  inquire 
the  true  rendering  of  Greek  and  Hebrew  words,  but 
take  the  English  Bible  as  a  correct  translation.2 

§  52.  In  a  preliminary  historical  sketch  of  slavery, 
we  have  seen  the  nature  of  this  institution  among 
the  Jews,  and  many  of  the  rules  by  which  it  was 
governed.  Was  this  evidence  of  the  sanction  and 
approval  of  God  ? 

1  Halm's  Collegium  Polemicum,  Controv.  IX. 

a  Of  the  denial  that  slavery  existed  among  the  Jews,  Dr.  Way- 
land  says :  "I  wonder  that  any  one  should  have  had  the  hardihood 
to  deny  so  plain  a  matter  of  record." — Letters  to  Dr.  Fuller,  IV. 


54  LAW  OF   NEGRO   SLAVERY. 

The  first  great  revelation  of  moral  precepts  was 
given  upon  Mount  Sinai,  and  condensed  in  that  most 
wonderful  code,  the  Decalogue.  Its  precepts  are  not 
only  pure,  but  "  the  law  of  the  Lord  is  perfect"1  Its 
general  teachings  are  not  only  true,  but,  by  no  im- 
plication can  sin  find  an  apology  or  excuse  therein. 
This  law  was  not  intended  for  any  particular  age  or 
people.  It  is  that  universal  law  of  God  which  Christ 
came  "  not  to  destroy,  but  to  fulfil."  When  he  was 
asked  by  the  young  man,  What  shall  I  do  to  inherit 
eternal  life?  his  reply  was,  Keep  the  command- 
ments. The  last  of  these  commandments  is,  "  Thou 
shalt  not  covet  thy  neighbor's  house,  thou  shalt  not 
covet  thy  neighbor's  wife,  nor  his  man-servant,  nor 
his  maid-servant,  nor  his  ox,  nor  his  ass,  nor  any- 
thing that  is  thy  neigJibor's"2  The  right  of  property 
in  the  man-servant  and  maid-servant  is  not  only 
here  plainly  recognized,  but  is  protected  even  from 
covetousness. 

§  53.  But  again :  God  sought  for  a  man  in  whose 
"seed  shall  all  the  nations  of  the  earth  be  blessed;" 
who  should  be  called  « the  friend  of  God,"3  and  "  the 
father  of  all  them  that  believe."4  He  found  him  in 
Abraham,  a  large  slaveholder.5  And  God  blessed 
him.  How?  By  opening  his  eyes  to  the  sin  of 
slavery  ?  No ;  but  by  "  giving  him  flocks  and  herds, 
and  silver  and  gold,  and  men-servants  and  maid-ser- 
vants, and  camels  and  asses."6  And  God  made  a 
covenant  with  him,  and  established  a  church  with 
a  sign  of  that  covenant  for  every  member  of  that 

1  Psalm  19  :  7.  2  Ex.  20  :  18. 

8  James  2  :  23.  *  Horn.  4  :  11. 

*  Gen.  14  :  14.  8  Gen.  24  :  35. 


SLAVERY  VIEWED    IN   THE   LIGHT   OF   REVELATION.      55 

church.  To  whom  did  that  covenant  extend,  and 
who  were  admitted  into  that  church  ?  Along  with 
the  master  Abraham  was  him  "  that  is  bought  with 
thy  money,"  his  slave  j1  thereby  teaching  his  chosen 
servant  the  great  lesson  upon  this  question  to  be 
found  throughout  the  sacred  Scriptures,  that  while 
God  recognizes  domestic  slavery,  in  some  cases,  as  a 
necessary  part  of  civil  government,  and  would  regu- 
late it  as  such,  the  master  and  the  slave  are  both 
alike  the  subjects  of  his  care,  and  the  recipients  of 
his  mercy. 

§  54.  God  not  only  gave  slaves  to  Abraham,  as 
evidence  of  his  blessing,  but  he  commanded  the  Jews 
to  make  slaves  of  the  heathen  round  about  them  : 
"  Of  them  shall  ye  buy  bondmen  and  bondmaids. 
Moreover,  of  the  children  of  the  strangers  that  do 
sojourn  among  you,  of  them  shall  ye  buy,  and  of 
their  families  that  are  with  you,  which  they  begat  in 
your  land,  and  they  shall  be  your  possession ;  and 
ye  shall  take  them  as  an  inheritance  for  your  chil- 
dren after  you  to  inherit  them  for  a  possession. 
They  shall  be  your  bondmen  forever."2  This  com- 
mand being  given  very  shortly  after  the  escape  of 
the  Israelites  from  Egypt,  was  probably  before  they 
owned  a  slave,  was  the  charter  under  which  they 
enslaved  the  Canaanites.  At  the  same  time,  God 
commanded  them,  that  "  if  thy  brother  by  thee  be 
waxen  poor  and  be  sold  unto  thee,  thou  shalt  not 
compel  him  to  serve  as  a  bond  servant,  but  as  a  hired 
servant  and  a  sojourner."3  Revelation  here  sustain- 

1  Gen.  17  :  12,  13.  » Lev.  25  :  44,  46. 

3  Ib.  39  :  40.  See  also  Deut.  24  :  7 ;  1  Kings  9  :  22 ;  Neh. 
5:8;  Joel  3:3;  Jer.  34  :  9,  et  seq. 


56  LAW  OF   NEGRO   SLAVERY. 

ing  the  conclusion  to  which  the  natural  law  points, 
that  inferiority  of  race  is  necessary  to  make  slavery 
consistent  with  the  Divine  will.  The  Jews  under- 
stood thoroughly  this  distinction,  and  when  the 
Saviour  announced  to  them  that  this  truth  should 
make  them  free,  they  answered,  "  We  be  Abraham's 
seed,  and  were  never  in  bondage  to  any  man ;  how 
sayest  thou  ye  shall  be  made  free  ?"1 

§  55.  It  is  unnecessary  to  follow  the  history  of 
the  Jews,  and  note  the  numerous  instances  in  which 
they  enslaved  others,  under  the  direct  command  of 
the  Almighty ;  nor  to  refer  to  the  various  provisions 
of  the  Mosaic  law,  regulating  the  relation  of  master 
and  slave.  And  yet,  nowhere  do  we  find  it  con- 
demned. When  the  Jews  failed  to  abide  by  the 
regulation,  giving  liberty  to  the  Hebrew  servant  on 
the  year  of  jubilee,  Jehovah  failed  not  to  pronounce 
his  anathema.  "  Ye  have  not  hearkened  unto  me, 
in  proclaiming  liberty  every  one  to  his  brother,  and 
every  man  to  his  neighbor;  behold,  I  proclaim  a 
liberty  for  you,  saith  the  Lord,  to  the  sword,  to  the 
pestilence,  and  to  the  famine."2  So,  when  they  op- 
pressed or  defrauded  the  hireling  of  his  wages,  the 
prophets  of  the  Almighty  did  not  wink  at  the 
offence :  "  Thou  shalt  not  oppress  an  hired  servant 
that  is  poor  and  needy."3  "  And  I  will  be  a  swift 
witness  against  those  that  oppress  the  hireling  in 
his  wages,  the  widow,  and  the  fatherless,  and  that 
turn  aside  the  stranger,  and  fear  not  me,  saith  the 
Lord  of  Hosts."4  It  is  very  strange  that  labor  should 

1  John  8  :  32,  33.  '  Jer.  34  :  17. 

3  Deut.  24  : 14.  *  Mai.  3  :  5. 


SLAVERY   VIEWED   IN   THE   LIGHT   OF   REVELATION.      57 

be  robbed  of  its  wages  so  long,  in  the  persons  of 
Jewish  slaves,  and  yet  the  cry  of  the  oppressed 
never  reached  the  ears  of  the  God  of  Sabaoth. 

§  56.  It  is  argued,  that  the  privilege  of  enslaving 
the  heathen  was  granted  only  to  the  Hebrews,  and 
for  peculiar  reasons,  and  hence  is  no  argument  in 
favor  of  other  domestic  slavery.  The  reply  is,  if 
slavery  is  sinful,  morally  wrong,  per  se,  and  under 
all  circumstances,  God  could  not  in  his  nature  have 
authorized  or  enjoined  it.1  If  it  was  not  sinful  in  the 
Jews,  it  is  not  sinful  under  all  circumstances ;  and 
the  question  of  its  morality  in  every  case  depends 
upon  its  circumstances, — precisely  the  conclusion  to 
which  we  have  previously  arrived. 

§  57.  But  it  is  said  by  others,  that  the  same  argu- 
ment may  be  used  to  support  polygamy  as  slavery. 
That  both  were  practised  by  the  patriarchs,  and 
against  neither  did  Jehovah  pronounce  his  curse. 
The  facts  do  not  show  the  similarity.  No  such 
regulations  can  be  found  emanating  from  the  Al- 
mighty, in  reference  to  polygamy,  as  we  have  shown 
in  reference  to  slavery.  To  say  the  least,  the  law 
was  silent  as  to  the  former.  Whenever  the  marriage 
relation  is  spoken  of,  man  and  wife,  "  they  twain 
shall  be  one  flesh,"  is  the  teaching  of  the  law.2 
"  Live  joyfully  with  the  wife  whom  thou  lovest,  all 
the  days  of  thy  vanity."3  And  "  thy  wife  shall  be 
as  a  fruitful  vine  by  the  sides  of  thine  house,  thy 
children  like  olive  plants  round  about  thy  table. 

1  "  0,  mighty  God,  thou  art  of  purer  eyes  than  to  behold  evil, 
and  canst  not  look  on  iniquity." — Hahakkuk  1  :  12,  13. 

2  Gen.  2:20,  24 ;    7:9;    Ex.  20  :  17 ;    Deut.   5  :  21,  22  ; 
Matt.  19  :  4,  5  j  Eph.  5:31.  8  Eccl.  9  : 9. 


58  LAW  OP  NEGRO   SLAVERY. 

Behold,  that  thus  shall  the  man  be  blessed  that 
feareth  the  Lord."1 

But  suppose  the  analogy  was  complete,  and  that 
there  is  nothing  in  the  Old  Testament,  either  directly 
or  indirectly,  showing  monogamy  to  be  the  will  of 
God,  or  that  polygamy  in  the  Hebrews  was  disap- 
proved by  him.  The  conclusion  is  simply,  that 
polygamy  in  the  Jews  was  not  sinful,  "  for  sin  is  the 
transgression  of  the  law,"2  and  hence  that  polygamy 
is  not  necessarily  a  sin,  but  becomes  so  so  soon  as  it 
is  the  transgression  of  the  law. 

§  58.  But  let  us  enter  into  the  bright  light  of 
Christianity,  as  developed  in  the  New  Testament, 
and  examine  the  question  there.  That  there  is  no 
direct  positive  prohibition  of  slavery,  nor  even  an 
intimation  by  Christ  or  his  Apostles  that  its  prin- 
ciple or  practice  was  violative  of  the  Divine  will,  is 
admitted.  Various  excuses  are  given  for  this  want 
of  fidelity  in  the  Saviour,  in  his  great  duty  and 
mission, — the  rebuking  of  sin.  The  universality  of 
its  existence,  the  terrible  results  consequent  upon 
the  upheaving  of  the  whole  social  system,  his  absti- 
nence from  all  interference  with  civil  institutions, 
have  each  been  suggested  as  explanatory  of  his 
silence.  Other  sins  went  not  unrebuked  because  of 
their  prevalence.  He  hesitated  not  in  any  other 
call  of  duty  from  motives  of  expediency,  trusting 
ever  to  the  power  of  the  truth  to  make  its  sure  way 
over  every  human  obstacle ;  and  the  suggestion  that 
it  was  merely  a  civil  institution,  is  an  admission  that 
it  was  not  morally  a  sin.  We  must  look  farther  for 
a  satisfactory  explanation. 

1  Ps.  128  :  3,  4.  3 1  John  3  :  4. 


SLAVERY  VIEWED  IN  THE  LIGHT  OF  REVELATION.   59 

§  59.  But  first,  how  is  slavery  treated  in  the  New 
Testament  ?  It  did  not  escape  the  notice  of  the 
Lord,  for  we  find  him  illustrating  the  great  truths 
that  he  taught,  by  references  to  the  relation  of  mas- 
ter and  slave.  It  is  true  that  he  used  other  human 
conduct,  wrong  in  itself,  such  as  the  unjust  steward, 
as  the  foundation  of  parables ;  yet,  in  every  instance, 
he  either  at  the  time  or  on  other  occasions  con- 
demned the  sin.  On  this  sin  he  was  silent.  When 
the  rich  young  man  came  to  ask  a  blessing  from 
him,  though  his  heart  yearned  towards  his  loveli- 
ness, he  saw  the  sinful  love  of  wealth,  and  rebuked 
it.  But  when  the  Roman  centurion  came  to  ask  his 
blessing  upon  a  sick  slave,  one  whom  he  commanded 
to  do,  and  he  was  forced  to  obey,  though  he  com- 
mended his  humility  and  his  faith,  did  not  the 
Saviour  perceive  the  great  sin  of  slaveholding  ad- 
hering to  his  skirts  ?  Why  did  he  not  rebuke  this 
sin,  as  he  had  rebuked  the  young  man's  love  of 
gold? 

§  60.  But  Christ  went  farther :  he  recognized  dis- 
tinctly and  approved  the  master's  superiority :  "  But 
which  of  you  having  a  servant  ploughing,  or  feeding 
cattle,  will  say  unto  him,  by  and  by,  when  he  is 
come  from  the  field,  Go  and  sit  down  to  meat,  and 
will  not  rather  say  unto  him,  Make  ready  where- 
with I  may  sup,  and  gird  thyself  and  serve  me,  till 
I  have  eaten  and  drunken,  and  afterward  thou  shalt 
eat  and  drink  ?  Doth  he  thank  that  servant  because 
he  did  the  things  that  were  commanded  him  ?  I 
trow  not."1  "  For  whether  is  greater,  he  that  sitteth 

1  Luke  17:  7,  8,9. 


60  LAW  OP  NEGRO   SLAVERY. 

at  meat,  or  he  that  serveth  ?  Is  not  he  that  sit- 
teth  at  meat?"1  "  Verily, verily,  I  say  unto  you,  the 
servant  is  not  greater  than  his  Lord."2 

§  61.  The  apostles  went  farther,  and  laid  down  in 
express  terms,  rules  regulating  the  relation  of  mas- 
ter and  slaves.  "  Servants,  be  obedient  to  them  that 
are  your  masters  according  to  the  flesh,  with  fear 
and  trembling,  in  singleness  of  your  heart,  as  unto 
Christ.  Not  with  eye-service,  as  men-pleasers,  but 
as  the  servants  of  Christ,  doing  the  will  of  God  from 
the  heart. .  .  .  Knowing  that  whatsoever  good  thing 
any  man  doeth,  the  same  shall  he  receive  of  the 
Lord,  whether  he  be  bond  or  free.  And  ye  masters, 
do  the  same  things  unto  them,  forbearing  threaten- 
ing ;  knowing  that  your  Master  also  is  in  heaven. 
Neither  is  there  respect  of  persons  with  him."3  "Let 
as  many  servants  as  are  under  the  yoke  count  their 
own  masters  worthy  of  all  honor,  that  the  name  of 
God  and  his  doctrine  be  not  blasphemed.  And 
they  that  have  believing  masters,  let  them  not  de- 
spise them,  because  they  are  brethren ;  but  rather 
do  them  service,  because  they  are  faithful  and  be- 
loved partakers  of  the  benefit.  These  things  teach 
and  exhort.  If  any  man  teach  otherwise,  and  con- 
sent not  to  wholesome  words,  even  the  words  of  our 
Lord  Jesus  Christ,  and  to  the  doctrine  which  is  ac- 
cording to  godliness,  he  is  proud,  knowing  nothing, 
but  doting  about  questions  and  strifes  of  words."4 
"Exhort  servants  to  be  obedient  unto  their  own 
masters,  and  to  please  them  well  in  all  things,  not 

1  Luke  22  :  17.  a  John  13  :  16. 

3  Eph.  6  :  5,  6,  8,  9.     See  also  Col.  3  :  22,  23,  24. 
*  1  Tim.  6  :  1,  2,  3,  4. 


SLAVERY   VIEWED   IN   THE   LIGHT   OF   REVELATION.      61 

answering  again,  not  purloining,  but  showing  all 
good  fidelity,  that  they  may  adorn  the  doctrine  of 
God  our  Saviour  in  all  things."1  "  Servants,  be  sub- 
ject to  your  masters  with  all  fear ;  not  only  to  the 
good  and  gentle,  but  also  to  the  froward."2  "  Let 
every  man  abide  in  the  same  calling  wherein  he  was 
called.  Art  thou  called,  being  a  servant,  care  not 
for  it,  but  if  thou  mayest  be  made  free,  use  it  rather; 
for  he  that  is  called  in  the  Lord,  being  a  servant,  is 
the  Lord's  freeman ;  likewise  also,  he  that  is  called, 
being  free,  is  Christ's  servant."3 

§  62.  From  these  passages,  it  cannot  be  inferred 
that  Christ  and  his  apostles  recommended  slavery, 
such  as  they  saw  it ;  or  that  these  precepts  exhorted 
the  establishment  of  the  institution  where  it  does 
not  exist,  or  the  continuance  of  it  in  all  cases.  They 
simply  treated  slavery  as  they  did  all  other  civil 
government,  as  of  God,  so  long  as  in  his  providence 
he  permitted  it  to  exist ;  and  regulated,  by  precepts, 
the  relation,  as  they  did  that  of  ruler  and  subject. 
The  only  legitimate  inference  to  be  drawn  is,  that 
the  relation  is  not  necessarily  and  per  se  sinful.  That 
it  may  or  may  not  be,  according  to  the  circumstances 
of  each  particular  case,  thus  harmonizing  with  the 
conclusion  to  which  we  were  brought  by  an  inquiry 
into  the  unrevealed  law  of  nature. 

§  63.  But  it  is  said,  that  while  the  Saviour  did 
not  expressly  prohibit  the  institution,  he  announced 
principles  with  which  it  is  utterly  inconsistent,  and 
the  legitimate  fruits  of  which  must  be  its  extinction. 
These  principles  are,  "  Thou  shalt  love  thy  neighbor 
as  thyself.  And  whatsoever  ye  would  that  men 

1  Tit.  2  :  9,  10.       »  1  Pet.  2  :  18.       » 1  Cor.  7  :  20,  21,  22. 


62  LAW  OF   NEGRO   SLAVERY. 

should  do  unto  you,  do  ye  even  so  unto  them."  The 
argument  is  legitimate,  if  the  conclusion  is  correctly 
drawn.  Let  us  examine  it.  The  analysis  of  the 
rule  is,  we  should  act  towards  others,  not  as  they  act 
towards  us,  not  as  the  laws  of  the  land  allow  us  to 
act,  but  as  we  would  have  them  to  act  towards  us, 
were  our  respective  situations  reversed.  How  would 
we  have  them  to  act  toward  us  in  all  cases  ?  Ac- 
cording to  our  whims  or  childish  desires  ?  If  so,  we 
must  give  free  scope  to  the  crude  wishes  of  our  chil- 
dren ;  we  must  release  the  condemned  convict,  for 
thus  it  is  that  we  would  have  them  to  act  toward  us 
were  our  situations  reversed.  Such  is  not  the  rule. 
We  would  have  them  to  act  toward  us,  in  all  cases, 
in  that  manner  which  would  tend  most  to  promote 
our  real  good  and  happiness,  even  though  we  could 
not  ourselves  see  it.  Hence  we  should  control  the 
child,  though  its  wishes  be  adverse,  for  its  ultimate 
good.  We  should  punish  the  criminal  however  he 
may  regard  it,  for  his  interest  as  a  citizen  requires 
the  execution  of  the  laws.  We  should  deal  in  the 
same  way  with  the  slaves.  We  should  act  towards 
them,  in  all  cases,  in  that  manner  which  tends  most 
to  promote  their  real  good  and  happiness ;  in  that 
manner  which  will  most  surely  elevate  them,  physi- 
cally, intellectually,  and  morally :  for  so,  according 
to  the  golden  rule,  would  we  have  them  to  act  to- 
ward us.  If  the  condition  of  bondage  does  actually 
promote  their  real  good  and  happiness,  then  this 
precept  sanctions  and  enjoins  it.  If,  on  the  con- 
trary, it  diminishes  their  real  good,  and  does  not 
promote  their  true  happiness,  it  runs  counter  to  this 
great  precept,  and  should  cease  to  exist.  The  test 
then  is,  does  the  institution  of  negro  slavery  tend  to 


SLAVERY  VIEWED   IN   THE   LIGHT   OF   REVELATION.      63 

promote  the  physical,  intellectual,  and  moral  growth 
of  the  negro  race  ?  The  very  test  to  which  we  ar- 
rived by  our  investigation  of  the  unrevealed  natural 
law. 

§  64.  It  is  said,  that  were  the  great  principles  of 
Christianity  perfectly  implanted  in  every  heart,  so 
as  to  control  every  action,  the  institution  of  slavery 
would  end.  So  far  as  that  institution  involves  the 
idea  of  the  control  of  the  inferior  by  the  will  of  the 
superior,  this  is  true.  And  so  would  it  be  true  of 
all  government.  Revelation  teaches  us,  that  God 
gave  different  gifts  to  different  men.  To  one  five 
talents,  to  another  two,  to  another  one.  To  one  the 
gift  of  tongues.  To  another,  government.  It  teaches 
us  to  repress  every  feeling  of  envy,  strife,  ambition; 
and  whatever  may  be  our  situation  in  life  suited  to 
our  capacity  therewith  to  be  content.  If  every  man 
in  the  community  thoroughly  appreciated  his  own 
gifts,  and  was  therewith  content,  then  each  would, 
unbidden,  assume  that  position  in  the  scale  of  life 
to  which  his  talent  fitted  him.  The  rulers  would 
be  pointed  out  of  God  ;  the  subjects  would  rejoice  to 
obey.  The  master  would  recognize  a  brother  in  his 
servant ;  while  the  servant  would  take  pleasure  in 
the  service  of  his  Lord.  Nothing  would  be  of  con- 
straint. Everything  would  be  of  free-will.  Such  is 
the  Apostle's  idea  of  the  perfect  law  of  liberty  in 
Christ.1  To  be  such  is  to  be  Christ's  freemen. 
"  Where  the  spirit  of  the  Lord  is,  there  is  liberty."8 
Such  a  man  needs  no  restraint,  whatever  may  be  his 
situation.  If  "  called,  being  a  servant,  he  cares  not 

1  James  1  :  25.     See  Psalm  119  :  45. 
1  2  Cor.  3 


64  LAW   OF  NEGRO   SLAVERY. 

for  it."  "  For,  brethren,  ye  have  been  called  unto 
liberty ;  only  use  not  liberty  for  an  occasion  to  the 
flesh,  but  by  love  serve  one  another."1  Such  would 
be  the  glorious  fruits  of  the  complete  triumph  of  the 
Gospel  of  Christ.  In  the  present  dispensation,  it 
would  seem  that  we  need  hardly  expect  it.  For 
when  the  prophetic  vision  of  St.  John  saw  the 
"  heaven  departed  as  a  scroll  when  it  is  rolled  to- 
gether," there  were  "bondmen"  as  well  as  "freemen," 
who  "  hid  themselves  in  the  dens  and  in  the  rocks 
of  the  mountains."2 

§  65.  From  this  investigation  into  the  law  of  nature, 
the  will  of  God,  our  conclusion  is,  that  until  the  na- 
ture of  the  African  negro  becomes  by  some  means 
radically  changed,  there  is  nothing  in  his  enslave- 
ment contrary  to  the  law  of  his  nature.  In  this,  we 
speak  of  the  limited  or  qualified  slavery,  such  as 
exists  at  present  in  the  United  States,  and  not  of 
absolute  or  pure  slavery,  as  defined  by  us.  For  the 
latter  includes  the  power  over  life,  the  jus  vitce  et 
necis;  and  as  it  cannot  be  said  that  the  physical,  in- 
tellectual, or  moral  nature  of  the  slave,  can  be  im- 
proved, or  his  happiness  promoted,  by  the  existence 
or  exercise  of  such  a  power  as  this,  so  we  find  in  the 
law  of  nature  no  justification  of  or  foundation  for 
this  power.3 

1  Gal.  5  :  13.     See  also  1  Pet.  2  :  16. 

8  Rev.  6  :  14,  15.  In  replying  to  the  argument  to  show  slavery 
a  sin  from  the  Bible,  I  have  not  referred  to  the  authors  by  express 
reference.  The  reader  will  perceive  that  I  have  examined  the 
objections  made  by  Sharp,  Barnes,  Channing,  and  Wayland,  and 
repeated  in  varied  forms  by  smaller  imitators. 

3  This  is  the  conclusion  to  which  Grotius  arrives.  De  Jure 
Belli  et  Pacis,  Lib.  II,  c.  v. 


CHAPTER  III. 

OF  THE  ORIGIN  AND   SOURCES  OF   SLAVERY. 

§  66.  WE  have  seen  in  a  preliminary  sketch  the 
history  of  the  introduction  of  negro  slavery  into  the 
United  States.  The  origin  of  the  system  is  found,  /-? 
therefore,  in  purchase,  of  persons  already  in  a  state  of 
slavery  in  their  own  land.  The  law  does  not  go  back 
of  that  fact,  to  inquire  into  the  foundation  of  that 
slavery  there,1  but  recognizing  the  rights  of  the  mas- 
ter there  to  sell,  sustains  the  title  of  the  purchaser 
from  him.2  It  was  alleged,  and,  doubtless,  was  true,, 
that  the  slave-traders  sometimes  stimulated  or  werei 
engaged  in  kidnapping  free  negroes  on  the  coast  of 
Africa,  who  were  afterwards  sold  as  slaves.  Such  a 
foundation  could  not  sustain  a  legal  claim  to  the 
bondage  of  the  victim. 

§  67.  A  few  of  the  slaves  in  America  are  the  de- 
scendants of  conquered  Indians.  The  foundation  of 
their  enslavement  is  the  right  of  conquest,  which 
has  been  recognized  in  all  countries  as  one  of  the 

1  Mary  v.  The  Vestry,  &c.,  3  Harr.  &  McH.  501  j  Hudgins  v. 
Wright,  1  Hen.  &  Munf.  134  j  Davis  v.  Curry,  2  Bibb.  238. 

2  The  presumption  is  in  favor  of  slavery  there.    3  Harr.  &  Mc- 
Hen.  501. 

5 


66  LAW  OF  NEGRO   SLAVERY. 

sources  of  slavery.1  The  presumption  in  relation  to 
the  Indian,  is  that  he  is  free,  and  it  is  incumbent 
on  the  party  alleging  slavery  to  show  his  title.2 

§  68.  White  persons  may  not  be  enslaved  or  held 
as  slaves,  except  by  express  statutory  enactment.3 
The  presumption  of  freedom  arises  from  the  color, 

1  State  v.  Van  Waggoner,  1  Halsted,  374  ;  Marguerite  v.  Chou- 
teau,  2  Miss.  71 ;  3  Ib.  540 ;  Seville  v.  Chretien,  5  Martin,  275 ; 
1  Dallas,  167. 

In  Georgia,  by  the  Act  of  1770  (New  Digest,  971),  all  Indians 
were  declared  slaves,  "  except  free  Indians  in  amity  with  this 
Government."  In  Virginia,  since  1691,  no  American  Indian  could 
be  reduced  to  slavery.  See  Gregory  v.  Bough,  4  Rand.  611,  for 
a  full  history.  See  also  note  to  Code  of  Virginia  (1849),  p.  456. 
In  South  Carolina,  Indians,  prisoners  of  war,  were  directed  to  be 
bought  and  sold  as  slaves.  2  Statutes  at  Large,  325.  And  all 
theretofore  bought  and  sold  as  slaves,  declared  slaves,  8  Ibid.  352, 
371,  385. 

Mr.  Stroud,  in  his  "  Sketch  of  the  Law  of  Slavery,"  has  in- 
dulged in  great  indignation  at  the  enslavement  of  Indians.  It 
certainly  is  in  accordance  with  the  law  of  nations,  and  was  prac- 
tised by  all  the  colonies.  See  "  General  Laws  and  Liberties  of 
Massachusetts  Bay,"  ch.  xii,  §  2.  And  is  preferable  to  the  treat- 
ment in  other  places  of  conquered  Indians,  where  "  the  old  men, 
the  women,  and  babes,  perished  by  hundreds  in  the  fire."  Bancroft's 
King  Philip's  War,  vol.  ii,  pp.  104,  105. 

*  Ulzire  et  al.  v.  P.  Farra,  14  Martin,  504 ;  Hudgins  v.  Wright, 
1  Hen.  &  Munf.  134;  Hook  v.  Nancy  Pagee,  2  Munf.  379; 
Gregory  v.  Baugh,  2  Leigh,  686 ;  S.  C.  4  Rand.  632 ;  Gatliffe's 
Admr.  et  al.  v.  Rose  et  al.,  8  B.  Monr.  632. 

8  Gentry  v.  McMinnis,  3  Dana,  382. 

In  Maryland,  by  the  Act  of  1663,  a  white  woman  marrying  a  slave, 
became  with  the  issue  slaves.  This  act  was  repealed  in  1681.  But 
the  descendants  of  those  marrying  in  the  meanwhile  have  been 
held  to  be  slaves.  Butler  v.  Boarman,  1  Har.  &  McHen.  371; 
Butler  v.  Craig,  2  Har.  &  McHen.  214. 


ORIGIN  AND   SOUKCES   OF   SLAVERY.  67 

and  it  is  incumbent  on  the  person  claiming  title  to 
rebut  that  presumption.1 

§  69.  As  all  the  negroes  introduced  into  America 
were  brought  as  slaves,  the  black  color  of  the  race 
raises  the  presumption  of  slavery,2  contrary  to  the 
principles  of  the  common  law,  which  would  presume 
freedom  until  the  contrary  is  shown.3  This  presump- 
tion is  extended,  in  most  of  the  States,  to  mulattoes 
or  persons  of  mixed  blood,  casting  upon  them  the 
onus  of  proving  a  free  maternal  ancestor.4  In  others, 
it  is  confined  to  the  negroes.5  In  those  States  where 
slavery  has  been  abolished,  no  such  presumption 
would  attach,  except  to  persons  proven  to  be  fugi- 
tives from  a  slaveholding  State.6 

1  Hook  v.  Nancy  Pagee  and  her  children,  2  Munf.  379;  Gentry 
v.  McMinnis,  3  Dana,  382 ;  Gatliffe's  Admr.  v.  Rose  et  al.,  8  B. 
Monr.  632. 

8  Remick  v.  Chloe,  1  Miss.  197 ;  Macon  &  W.  R.  R.  Co.  v. 
Holt,  8  Ga.  157 ;  Davis  v.  Curry,  2  Bibb.  238 ;  Gibbons  v.  Morse, 
2  Hals.  253 ;  3  Ibid.  375 ;  Kegler  v.  Miles,  Mart.  &  Yerg.  427  ; 
Tritigot  v.  Byers,  5  Cowen,  480  ;  Adele  v.  Beauregard,  1  Mart. 
183  ;  Gober  v.  Gober,  2  Hayw.  170 ;  3  Dana,  382  ;  6  Gill  &  J. 
136 ;  1  Dev.  376 ;  5  Sm.  &  Mar.  609 ;  4  Har.  &  McH.  295. 

8  Coke  Lit.  128  a;  3  Harrington,  551,  559;  3  Scammon,  232; 
4  Har.  &  McHen.  295. 

4  In  many  of  the  States  by  statute,  Georgia  (New  Dig.  971), 
Maryland  (1  Dorsey's  Laws,  28),  South  Carolina,  7  Stat.  at  Large, 
352,  371,  385.    In  Virginia  and  Kentucky,  one-fourth  negro  blood 
presumes  slavery,  less  than  that,  freedom.    Gentry  v.  McMinnis,  3 
Dana,  385 ;  Rev.  Code  Va.  1849,  457,  note. 

5  2  Hay  wood,  170 ;  Scott  v.  Williams,  1  Dev.  376 ;  State  v. 
Muller,  7  Iredell,  275 ;  State  v.  Cecil,  2  Martin,  208 ;  Gober  v. 
Gober,  1  Taylor  (Lou.),  164. 

8  Kinney  v.  Cook,  3  Scammon,  232 ;  Stoutenborough  v.  Havi- 
land,  3  Green,  266. 


68  LAW  OF  NEGRO   SLAVERY. 

§  70.  The  issue  and  descendants  of  slaves,  in  the 
maternal  line,  are  slaves.  The  rule,  partus  sequitur 
ventrem,  has  been  adopted  in  all  the  States.1  The 

1 1  Hen.  &  Munf.  134;  1  Hayw.  234;  1  Cook,  381;  2  Bibb. 
298;  5  Dana,  207;  2  Ib.  432;  2  Miss.  71;  3  Ib.  540 ;  8  Peters, 
220;  15  Sergt.  &  Rawle,  18;  2  Brev.  307;  20  John.  1;  12 
Wheat.  568.  In  several  of  the  States  this  rule  is  adopted  by 
statute.  South  Carolina,  7  Stat.  at  Large,  397 ;  Georgia,  New  Dig. 
971 ;  Mississippi,  Hutchinson's  Code,  512 ;  Virginia,  Rev.  Code 
(1849),  457 ;  Louisiana,  Civil  Code,  Art.  183 ;  Maryland,  semble, 
1  Dorsey,  28;  formerly  otherwise,  1  Har.  &  McH.  370. 

Mr.  Stroud,  in  his  "  Sketch  of  the  Laws  regulating  Slavery  in 
the  United  States,"  has  indulged  in  considerable  abuse  of  the 
slaveholding  States  for  the  adoption,  by  their  statutes  and  by  their 
courts,  of  this  principle  of  the  civil  law  in  preference  to  the  doc- 
trine of  the  common  law.  He  calls  it  "  a  degrading  principle" 
(p.  11),  "  a  measure  of  cruelty  and  avarice"  (p.  12),  "  a  reproach 
to  our  republics"  (p.  13),  &c. ;  and  urges,  that  the  doctrine  of  the 
common  law,  coupled  with  the  other  principle,  that  all  bastards  are 
free,  would  have  emancipated  all  mulattoes  (p.  14).  I  have  re- 
ferred to  these  remarks  more  to  show  the  spirit  in  which  this  sketch 
is  written,  than  seriously  to  argue  the  question.  I  cannot  refrain 
from  remarking,  however,  that  a  moment's  reflection  would  have 
shown  Mr.  Stroud  that  it  is  the  latter  principle,  viz.,  the  freedom 
of  all  bastards,  that  would  effect  the  object  so  desirable  in  his  eyes, 
the  freedom  of  mulattoes ;  and  that,  independent  of  this  principle, 
it  is  a  matter  of  secondary  importance  as  to  the  end  he  has  in  view, 
whether  the  civil  or  common  law  rule  be  adopted.  In  fact,  were 
the  common  law  rule  adopted,  the  issue  of  a  free  white  woman,  by 
a  slave,  would  be  slaves.  Such  was  the  rule  for  a  short  period  of 
time  in  Maryland  and  Pennsylvania,  and  most  heartily  does  Mr. 
Stroud  condemn  the  consequence  (pp.  10,  19).  The  truth  is,  Mr. 
Stroud  wrote  to  make  slavery  odious.  In  a  note  to  p.  23,  Mr. 
Stroud  says,  that  "the  harsh  features  of  slavery  were  never  known 
in  New  England."  Yet  this  "  degrading  principle"  of  "  cruelty 
and  avarice,"  was  adopted  in  all  their  courts !  See  Slavery  as  It 
Is,  p.  191.  The  principle  changes  wonderfully  in  turpitude  as 

comes  south  of  the  Potomac. 


ORIGIN  AND   SOURCES    OF   SLAVERY.  69 

reason  of  this  rule,  as  given  by  the  civilians,  was, 
"  Ex  juris  principiis  foetus,  tanquam  accessio  ventris, 
ad  dominum  ventris  pertinet."  "  From  principles  of 
justice,  the  offspring,  the  increase  of  the  womb,  be- 
longs to  the  master  of  the  womb."1  This  rule  has 
been  almost  universal  among  those  nations  recog- 
nizing slavery.2  It  was  certainly  the  Levitical  law, 
which  provided,  that  when  the  Hebrew  slave,  at  the 
end  of  six  years,  went  free,  "  the  wife  and  her  chil- 

1  Heineccius,  Elem.  Jur.  Lib.  I,  tit.  iii,  §  81 ;  Potgiesser,  De 
Statu  Servorum,  Proleg.  §  xxix ;    Domat,  §  99.     See  also  Ruther- 
forth's  Institutes,  247,  for  the  reasons  of  the  rule.     Grotius  says, 
that  by  the  law  of  nature  the  issue  should  be  the  common  property 
of  the  masters  of  both  parents,  "  Quia  uterque  parens  sit  causa 
partus."     Hein.  Prgelec,  in  H.  Grot.  Lib.  II,  c.  v,  §  29. 

2  Among  all  the  German  nations,  Heinec.  Elem.  Jur.  Lib.  I, 
§  86.     See  also  Vol.  VI,  oper.  13. 

Among  the  Austrians  and  Swedes,  Potg.  De  Statu  Serv.  Lib.  I, 
c.  i,  §  xi,  note  c.  In  Helvetia,  Batavia,  and  Denmark,  Ibid.  L.  II, 
c.  ii,  §  50. 

Among  the  ancient  Germans  and  Franks,  the  issue  followed  the 
condition  of  the  most  ignoble  (deterior)  parent,  whether  father  or 
mother.  Hence,  if  either  was  a  slave,  the  issue  were  slaves.  Ibid. 
Lib.  I,  cap.  i,  §§  xi,  xii.  The  Bavarian  law  excepted  cases  where 
the  mother  was  ignorant  of  the  ignoble  condition  of  the  father. 
Ibid.  All  bastards  and  infants  exposed  were,  on  this  principle, 
slaves.  So  also  were  hermaphrodites.  Ibid.  §  xiii.  This  was  the 
Roman  law  as  to  infants  exposed.  Ibid.  By  the  custom  of  Ravens- 
berg,  the  eldest  child  of  a  free  woman,  by  a  slave,  was  free ;  the 
remainder  were  slaves.  Ibid.  §  50. 

Le  Code  Noir,  for  the  regulation  of  slavery  in  the  French  colo- 
nies prescribes,  that  "  Les  enfans  qui  naissent  d'un  mariage  entre 
esclaves,  sont  aussi  esclaves,  et  appartiennent  au  maitre  de  la  femme 
esclave,  et  non  a.  celui  du  mari,  si  le  mari  et  la  femme  ont  des 
maitres  differents."  Merlin,  Report  de  Juris,  verbo  Esclavage. 
"  Et  si  le  pere  est  libre,  et  la  mere  esclave,  les  enfants  sont  pareille- 
ment  esclaves."  Ibid. 


70  LAW  OF   NEGRO    SLAVERY. 

dren  shall  be  her  master's,  and  he   (the  Hebrew 
father)  shall  go  out  by  himself."1 

§  71.  Lord  Coke  announced  the  common  law  to 
be  different,  and  subsequent  writers  have  followed 
this  high  authority.  The  older  authors,  Bracton, 
Britton,  and  Fleta,  announce  the  civil  law  rule  as 
the  law  of  England ;  except  that  they  regulate  the 
status  by  the  condition  of  the  mother  at  the  time  of 
conception  and  not  of  birth,2  and  this  principle  seems 

1  See  Lev.  25  :  45,  46  j  Grotius,  De  Jure,  &c.,  L.  II,  ch.  v.  To 
this  there  is  this  curious  note :  "  Seneca  has  observed,  that  chil- 
dren belong  equally  to  both  father  and  mother."  De  Benefic.  Lib. 
VII,  cap.  xii.  In  the  laws  of  the  Visigoths  this  question  is  asked : 
"If  a  son  is  produced  by  the  concurrence  of  both  parents,  why 
should  he  share  the  condition  of  his  mother  only,  since  he  could 
not  have  existed  without  a  father  ?"  From  which  it  is  concluded, 
that,  "  according  to  the  law  of  nature,  children  born  of  two  slaves, 
belonging  to  different  masters,  are  to  be  divided  equally  between 
them  both."  Lib.  X,  tit.  i,  17.  The  children  of  two  Sclavonians 
followed  their  father,  as  appears  from  the  Speculum  Saxonicum,  iii, 
73.  The  same  thing  was  practised  in  some  parts  of  Italy.  See 
the  Decretals,  Lib.  IV,  tit.  ix,  De  Conjug.  Servorum,  cap.  iii. 
Among  the  Lombards  and  Saxons,  the  children  shared  the  fate  of 
that  parent  whose  condition  was  lowest.  Speculum  Saxonicum,  i, 
16.  So  also  among  the  Visigoths  in  Spain,  in  Isidore's  time,  as 
appears  from  the  canon  law.  Can.  xxxii,  Quest,  iv,  c.  xv. 
The  laws  of  the  Visigoths  formally  declare,  that  a  child  born  of  a 
free  father  and  a  mother  that  is  a  slave,  thereby  became  a  slave. 
Lib.  Ill,  tit.  ii.  3 ;  Lib.  IV,  tit.  v,  7 ;  Lib.  IX,  tit.  i,  16.  Those 
that  were  born  of  two  slaves,  served  the  masters  of  both  their 
parents  equally.  If  there  was  but  one  son,  he  belonged  to  the 
father's  master,  on  paying  the  mother's  master  half  his  value.  In 
regard  to  those  termed  originarii,  the  father's  master  had  two-thirds 
and  the  mother's  master  the  other,  according  to  the  edict  of  King 
Theodoric,  in  Cassiodore,  c.  67. 

a  Bracton,  Lib.  I,  ch.  6,  §§  4,  5 ;  Britton,  ch.  31 ;  Fleta,  Lib.  I, 
ch.  3,  §  2;  Glanville,  Lib.  V,  ch.  6. 


ORIGIN  AND    SOURCES   OF   SLAVERY.  71 

to  be  as  old  as  the  Penitentials  of  Theodore  and 
Egbert.1  The  common  law,  as  announced  by  Little- 
ton, was,  that  "if  a  freeman  married  a  niefe  (slave), 
their  issue  shall  be  free."2  Bracton  gives  the  reason 
which  Lord  Coke  adopts  :  "  The  niefe  marrying  the 
freeman  is  enfranchised  during  the  coverture,  and 
therefore,  by  the  common  law,  the  issue  is  free."3 
But  without  marriage,  the  bastard  followed  the  con- 
dition of  the  mother.4  Littleton,  on  the  contrary, 
says,  all  bastards  are  free ;  a  deduction  from  the  fact, 
that  the  father  being  unknown,  the  presumption  is 
in  favor  of  liberty.  But  this  falls  to  the  ground  if 
the  earlier  writers  were  correct,  that  without  mar- 
riage, the  issue  of  a  niefe  followed  the  condition  of 
the  mother.5  Upon  this  inference  of  Littleton,  Lord 
Coke  announced  a  rule  for  the  common  law,  different 
from  that  of  the  civil  law.6 

§  71  a.  By  the  civil  law  rule,  adopted  as  before 
stated,  the  status  of  the  issue  is  determined  by  that 
of  the  mother  at  the  time  of  the  birth,  and  not  at 

1  Ancient  Laws  and  Institutes  of  England,  273. 
»  Lib.  II,  §  187. 

8  Fol.  78  b.  So  if  a  freewoinan  married  a  niefe,  she  became  a 
slave.  Bracton,  Lib.  IV,  ch.  6,  §  4. 

4  Bracton,  Lib.  I,  p.  5  a ;  Britton,  fol.  78,  ch.  31  j  Fleta,  Lib. 
I,  ch.  4 ;  The  Mirror,  ch.  2,  §  28 ;  Fortescue,  ch.  42 ;  Glanville, 
Lib.  V,  ch.  6. 

5  Potgiesser  notices  this  disagreement  of  the  English  authori- 
ties.    Lib.  II,  cap.  ii,  §  50. 

6  As  to  all  inferior  animals,  the  English  law  follows  the  rule : 
"  Vitulus  autem  inatris  est,  cujuscumque  taurus  alluserit."     See 
Ancient  Laws  and  Institutes  of  England,  title  Leges,  R.  Hen.  I, 
art.  Ivii ;  De  Solucione  Liberi  vel  Servi,  and  notes  thereto. 


72  LAW  OF  NEGRO   SLAVERY. 

the  time  of  conception.1  Being  fixed  at  the  birth, 
it  matters  not  how  soon  thereafter  the  condition  of 
the  mother  may  be  changed,  that  of  the  issue  is 
fixed.  Hence,  if  a  female  slave  is  emancipated  by 
will  or  deed,  to  take  effect  at  a  future  period,  and, 
before  that  period  arrives,  she  has  issue,  the  issue 
are  slaves.2 

§  72.  And  so,  if  the  mother  is  free  at  the  time  of 
the  birth,  the  issue  is  free,  and  no  subsequent  en- 
slavement of  the  mother  will  deprive  the  child 
of  freedom.3  Indeed,  so  unbending  is  the  prin- 
ciple, that  it  has  been  held,  that  if  a  deed  emanci- 
pating a  female  slave  reserves  her  future  increase  as 
slaves,  the  reservation  is  void  :  the  Court  observing, 

1  Ned  et  al.  v.  Beal,  2  Bibb.  298 ;  Rawlings  v.  Boston,  3  Har. 
&  McH.  139;  Adams  v.  Barrett,  2  Howard  U.  S.  496;  Miller 
v.  Dwilling,  14  S.  &  K.  446;  2  Hand.  246;  4  Rand.  600.  By 
the  Saxon  law,  the  status  was  determined  at  the  time  of  concep- 
tion. Theod.  Pen.  xvi,  33,  n.  2;  Egb.  Conf.  c.  25;  Ancient 
Laws,  &c.  272 ;  Glanv.  Lib.  V,  ch.  6.  A  late  law  at  Rome  made 
the  issue  free,  if  the  mother  was  free  at  any  time  during  the  preg- 
nancy. Paulus,  S.  R.  II,  tit.  xxiv;  Dig.  Lib.  I,  tit.  i,  §  5. 

8  McCutchen  v.  Marshall,  8  Pet.  220;  8  Martin,  218 ;  2  Rand. 
228;  6  Har.  &  John.  526;  2  Bibb.  298;  3  Iredell,  224;  5  Dana, 
207;  3  B.  Monr.  60;  12  Ala.  (N.  S.)  728;  2  Harrington,  77. 
A  different  decision  has  been  made  in  some  of  the  courts,  arising 
from  their  construing  such  cases  to  be  an  immediate  emancipation, 
with  a  reservation  only  of  services.  Pleasants  v.  Pleasants,  2  Call. 
206 ;  Harris  v.  Clarissa,  6  Yerg.  227.  This  construction  is  now 
followed  only  by  the  courts  of  Tennessee.  See  decision  of  RuflSn, 
C.  J-,  in  Mayho  v.  Sears,  3  Ired.  226;  Hartsell  v.  George,  3 
Humph.  255.  In  some  of  the  States,  it  has  been  declared  by 
statute,  that  the  issue  of  statuliberi  shall  be  free  when  the  mother 
becomes  free. 

8  Barrington  v.  Logan's  Admrs.  2  Dana,  432;  Charles  v.  French, 
6  J.  J.  Marsh.  331. 


ORIGIN  AND   SOURCES   OF   SLAVERY.  73 

"A  free  mother  cannot  have  children  who  are  slaves. 
Such  a  birth  would  be  monstrous,  both  in  the  eye 
of  reason  and  of  law."1  So  a  female  slave,  emanci- 
pated by  her  owner,  is  subject  to  sale  for  indebt- 
edness previously  contracted,  but  her  issue,  born 
while  she  is  enjoying  her  freedom,  are  not  thus 
subject.2 

§  73.  A  more  difficult  question  arises  when  the 
emancipation  of  the  mother  is  to  take  effect  upon 
the  happening  of  some  event  in  future — as,  for  in- 
stance, the  assent  of  the  Legislature  to  the  act  of 
manumission — whether  the  issue  born  pending 
the  contingency  are  slave  or  free.  Upon  principle, 
the  proper  rule  would  seem  to  be,  that  where,  upon 
the  happening  of  the  contingency,  the  act  of  manu- 
mission relates  back  to  the  period  when  it  first  be- 
came inchoate,  the  issue  should  be  free,  the  mother's 
freedom  dating  from  that  period.  And,  on  the  con- 
trary, where  the  mother's  freedom  dates  only  from 
the  happening  of  the  event,  the  issue  are  slaves.3 
Thus,  should  a  testator,  in  one  of  the  States  where 
emancipation  is  not  allowed,  except  with  the  assent 
of  the  Legislature,  bequeath  to  a  female  slave  her 
freedom,  instructing  his  executors  to  procure  the 
assent  of  the  Legislature  to  the  bequest,  and  such 
assent  was  subsequently  obtained,  it  would  seem 

1  Fulton  v.  Shaw,  4  Rand.  597  ;  see  also  Maria  et  al.  v.  Sur- 
baugh,  2  Rand.  240. 

9  Parks  v.  Hewlett,  &c.  9  Leigh,  511. 

3  Maria  et  al.  v.  Surbaugh,  2  Rand.  234  j  Henry  v.  Bradford, 
1  Robinson,  54;  Black  v.  Meaux,4  Dana,  188;  Sydney  v.  White, 
12  Ala.  (N.  S.)  728 ;  Johnson's  Admrs.  v.  Johnson's  Heirs,  8  B. 
Monroe,  470. 


74  LAW  OF  NEGRO   SLAVERY. 

that  such  assent  would  relate  back  to  the  death  of 
the  testator,  and  the  issue  born  since  the  death  and 
before  the  act  of  the  Legislature  would  be  free.1  On 
the  contrary,  if  the  bequest  of  a  female  slave  be  to 
A.  for  life,  and,  at  his  death,  to  B.,  if  he  survive  A., 
and  if  B.  die  before  A.,  then  the  slave  to  be  free. 
Upon  the  happening  of  this  contingency,  issue  born 
during  the  life  of  A.  would  be  slaves.2 

§  74.  Another  class  of  cases  is,  where  the  mother 
is  emancipated,  to  take  effect  at  a  future  period, 
and  in  the  meantime  remains  in  a  state  of  sla- 
very.3 Such  persons,  by  the  civil  law,  were  termed 
statuliberi,  and  their  issue,  born  prior  to  the  time 
when  their  freedom  took  effect,  were  slaves.4  Thus, 
where  the  testator  devised  to  his  wife  all  of  his 
slaves,  "  provided  that  at  her  death  they  should  be 
set  free,  with  the  exception  of  those  who  should  not 
be  of  age  at  the  death  of  his  wife,  who  were  to  re- 

1  See  opinion  of  Roane,  J.,  in  Pleasants  v.  Pleasants,  2  Call.  286; 
see  also  Donaldson  v.  Jude,  2  Bibb.  57;  Lewis  v.  Simonton,  8 
Humph.  189.  So,  where  a  female  slave  is  emancipated  by  will, 
and  the  probate  thereof  is  caveated,  and  pending  the  litigation,  a 
child  is  born,  upon  the  establishment  of  the  will,  the  child  is 
held  to  be  free,  a  nativitate.  Black  v.  Meaux,  4  Dana,  188.  And 
where  a  testator  gave  to  his  slaves  an  election  to  go  to  Liberia,  and 
by  his  will  "emancipated  all  such/'  on  the  slaves  electing  to  go, 
the  emancipation  related  back  to  the  death ;  and  issue  born  since 
were  held  to  be  free.  Graham's  Exr.  v.  Sam,  7  B.  Monroe,  403. 

3  McCutchen  et  al.  v.  Marshall  et  al.,  8  Peters,  220;  Maria  v. 
Surbaugh,  2  Rand.  228. 

3  It  has  been  held,  in  some  of  the  States,  that  no  such  qualified 
or  middle  state,  between  slavery  and  freedom,  can  exist.  Thus  in 
Virginia,  Wynn  et  al.  v.  Carrell  et  al.,  2  Grattan,  227 ;  see  also 
Henry  v.  Nunn,  11  B.  Monroe,  239. 

*  Huberi,  Prael.  Lib.  I,  tit.  iii,  §  5. 


ORIGIN  AND   SOURCES   OF   SLAVERY.  75 

main  under  the  control  of  certain  persons  until  they 
became  of  age,  when  they  were  to  be  set  free."  The 
females  had  issue  pending  the  life  estate.  As  to 
their  status,  Thompson,  J.,  delivering  the  opinion 
of  the  Supreme  Court  of  the  United  States,  says  : 
"  If  this  was  an  open  question,  it  might  be  urged 
with  some  force  that  the  condition  of  the  female 
slaves,  during  the  life  of  the  widow,  was  not  that  of 
absolute  slavery,  but  was,  by  the  will,  converted  into 
a  modified  servitude,  to  end  upon  the  death  of  the 
widow  or  on  their  arrival  at  the  age  of  twenty-one, 
should  she  die  before  that  time.  If  the  mothers 
were  not  absolute  slaves,  but  held  in  the  condition 
just  mentioned,  it  would  seem  to  follow  that  their 
children  would  stand  in  the  same  condition,  and  be 
entitled  to  their  freedom  on  their  arrival  at  the  age 
of  twenty-one  years.  But  the  course  of  decisions  in 
the  State  of  Tennessee,  and  some  other  States,  where 
slavery  is  tolerated,  goes  strongly,  if  not  conclu- 
sively, to  establish  the  principle,  that  females  thus 
situated  are  slaves ;  that  it  is  only  a  conditional 
manumission,  and  until  the  contingency  happens 
upon  which  the  freedom  is  to  take  effect,  they  re- 
main, to  all  intents  and  purposes,  absolute  slaves, 
and  the  Court  do  not  mean  to  disturb  the  principle." 
§  75.  So  also,  where  a  master  made  a  deed,  eman- 
cipating a  female  slave  "  with  the  qualification  and 
condition,  that  she  shall  hold  and  enjoy  freedom  im- 
mediately after  my  death,  but  during  my  life,  she 
is  to  remain  in  my  service  and  power,"  &c.  The 

1  McCutchen  et  al.  v.  Marshall  et  al.,  8  Peters,  220;  see  also 
opinion  of  Ruffin,  C.  J.;in  Mayho  v.  Sears,  3  Ired.  224. 


76  LAW  OF   NEGRO   SLAVERY. 

issue  born  during  the  lifetime  of  the  master,  were 
held  to  be  slaves  by  the  Supreme  Court  of  Louisiana, 
the  mother  "  being  of  that  class  of  persons  known 
to  the  Roman  law  by  the  appellation  of  statuli- 
5m'."1  Such  also  is  the  rule  of  the  civil  law,  from 
which  we  have  adopted  the  principles  controlling 
the  status  of  the  issue  of  slaves.2 

§  76.  It  will  be  seen  from  the  cases  referred  to 
and  other  decisions  of  the  courts,  that  while  they 
do  not  deny,  that  if  the  condition  of  slavery  of  the 
mother  becomes  qualified,  the  condition  of  the  issue 
would  be  either  the  same3  or  absolute  freedom,  yet 
they  incline  to  hold  the  condition  of  the  mother, 
under  the  facts  of  each  case,  to  be  that  of  absolute 
slavery.4  This  being  established,  the  consequence 

1  Catin  v.  d'Orgenoy's  Heirs,  8  Martin,  218.  "Statuliber  est 
qui  statutam  et  destinatam  in  tempus  vel  conditionem  libertatem 
habet."  Dig.  Lib.  XL,  tit.  vii,  §  1.  By  the  civil  law,  if  a  female 
were  bequeathed  to  another,  to  be  by  him  set  free  at  a  future  time, 
or  upon  a  condition,  and  the  time  had  come,  or  the  condition  been 
performed,  but  the  slave  not  actually  manumitted,  and  thereafter, 
before  an  actual  emancipation,  had  a  child  born,  the  child  was  a 
slave,  belonging  to  the  person  bound  to  manumit.  But  in  that 
case  he.  was  bound  to  transfer  the  child  to  the  mother,  that  he 
might  be,  by  that  means,  set  free.  Dig.  Lib.  XL,  tit.  v,  §  13. 
Cited  by  Green,  J.,  2  Rand.  242.  In  Maryland,  by  statute,  the 
person  manumitting  may  prescribe,  in  such  a  case,  whether  the 
issue  shall  be  bond  or  free.  If  he  fails  to  do  so,  they  are  slaves. 
Dorsey's  Laws,  &c.  593. 

3  Just.  Inst.  Lib.  I,  tit.  iii,  §  14;  Dig.  Lib.  XL,  tit.  vii,  §  1. 

8  Pleasants  v.  Pleasants,  2  Call.  319 ;  Harris  v.  Clarissa,  6  Yerger, 
227. 

4  Henry  v.  Bradford,  1  Robinson  (Va.),  53 ;  Crawford  v.  Moses, 
10  Leigh,  277 ;  Ned  v.  Beal,  2  Bibb.  298 ;  Jameson  v.  Emeline, 
5  Dana,  207 ;  3  B.  Monroe,  60.     The  conflict  of  the  authorities 


ORIGIN  AND   SOURCES   OF   SLAVERY.  77 

follows,  that  the  issue  are  slaves.  But,  wherever 
the  deed  of  manumission  changes  the  condition 
of  the  mother  from  slavery  to  mere  servitude, 
though  the  time  of  the  enjoyment  of  perfect  freedom 
be  postponed,  issue  born  subsequent  to  the  deed, 
and  pending  the  service  of  the  mother,  are  free.1 
According  to  the  civil  law,  in  such  a  case  the  slave 
would  be  free  immediately,  and  the  condition  an- 
nexed of  servitude  is  nugatory.  "  Libertas  ad  tempus 
dari  non  potest.  Ideoque,  si  ita  scriptum  sit,  usque 
ad  decem  annos  liber  esto,  temporis  adjectio  super- 
vacua  est."2 

§  77.  The  same  principle  applies,  in  those  States 
where  laws  have  been  passed  for  the  gradual  aboli- 
tion of  slavery,  whereby  the  condition  of  the  slaves 
at  certain  times  and  under  circumstances  varying 
according  to  the  provisions  of  the  respective  acts,  is 
changed  to  a  state  of  servitude  or  apprenticeship. 
The  issue  born  during  this  state  are  free,  subject 
only  to  such  services  as  the  respective  acts  may  im- 

upon  this  question,  arises  from  the  different  views  the  courts  take 
of  the  character  of  the  bequest,  or  gift  of  freedom  to  the  slave. 
See  an  elaborate  review  of  the  cases,  by  Ruffin,  C.  J.,  in  Mayho  v. 
Sears,  3  Ired.  226. 

i  McCutchen  et  al.  v.  Marshall  et  al.,  8  Peters,  221 ;  Isaac  v. 
West,  G  Rand.  652  j  Scott  v.  Waugh,  15  Serg.  &  Rawle,  17; 
Harris  v.  Clarissa,  6  Yerger,  227 ;  Hudgens  v.  Spencer,  4  Dana, 
589 ;  Charles  v.  French,  6  J.  J.  Marsh.  331 ;  Johnson's  Admrs. 
v.  Johnson's  Heirs,  8  B.  Monroe,  471 ;  O'Bryan,  v.  Goslee,  10  B. 
Monroe,  100 ;  Civil  Code,  Louisiana,  Art.  196.  In  some  of  the 
States,  however,  it  has  been  held  that  there  can  be  no  middle  con- 
dition between  slavery  and  freedom,  and  that  all  deeds  and  bequests, 
seeking  to  create  such  a  condition,  are  void.  Wynn  et  al.  v.  Carrell, 
2  Grattan,  227. 

a  Dig.  Lib.  XL,  tit.  iv,  §§  33,  34. 


78  LAW   OF   NEGRO   SLAVERY. 

pose.1  If,  however,  the  act  provides  for  the  freedom 
of  children  of  slaves  "  born  within  the  State,"  and 
after  the  passage  of  the  act,  a  female  slave  is  sold 
and  removed  into  another  State,  where  no  such  law 
exists,  issue  born  after  her  removal  are  not  free.2 

§  78.  If  the  instrument  emancipating  the  mother, 
declared  that  the  mother  "  and  her  increase"  shall 
be  free  at  a  future  period,  children  born  after  the 
making  of  the  deed,  and  before  the  time  arrives,  will 
be  free  at  that  time.3  So  also,  where  a  testator 
bequeaths  his  negroes  to  A.  for  life,  and  "  at  her 
death  all  his  negroes  to  be  free,"  the  issue  born, 
pending  the  life  estate,  are  entitled  to  their  freedom 
at  the  termination  of  the  life  estate.4  So  also,  where 
a  testator  emancipated  "all  his  negroes,"  upon  their 
electing  to  go  to  Liberia,  and  to  enable  them  to 
transport  themselves,  fair  wages  were  to  be  allowed 
them,  and  pending  the  time  of  their  service  issue 
was  born,  such  issue  have  also  the  right  of  elec- 
tion.8 

§  79.  Another  question  of  importance  arises  where 
the  law  of  the  place  of  the  birth  and  the  law  of  the 
domicile  of  the  mother  are  conflicting.  By  which 

1  Barrington  v.  Logan's  Admrs.  2  Dana,  432 ;  Gentry  v. 
McMinnis,  3  Dana,  382 ;  Spotts  v.  Gillaspie,  6  Rand.  566 ;  Mil- 
ler v.  Dwilling,  14  Serg.  &  Rawle,  442 ;  Boon  v.  Juliet,  1  Scam- 
mon,  258. 

3  Spotts  v.  Gillespie,  6  Rand.  566 ;  Frank  v.  Shannon's  Exrs. 
1  Bibb,  615. 

8  Fanny  v.  Bryant,  4  J.  J.  Marshall,  368. 

*  Erskine  v.  Henry  and  wife,  9  Leigh,  188 ;  see  also  Campbell 
v.  Street,  1  Ired.  109 ;  Hart  v.  Fanny,  6  Monroe,  49 ;  Hamilton 
v.  Cragg,  6  Har.  &  John.  16. 

5  Adams  v.  Adams,  10  B.  Monroe,  69. 


ORIGIN  AND   SOURCES   OF   SLAVERY.  79 

law  is  the  status  of  the  issue  to  be  decided  ?  Where 
the  mother  is  regularly  domiciled  at  the  time  of  the 
birth,  the  law  of  the  place  of  the  birth,  will  deter- 
mine the  status  of  the  issue.1  But  where  a  female 
slave,  at  the  time  of  the  birth  of  a  child,  is  either 
temporarily  or  wrongfully  within  a  different  juris- 
diction from  that  of  her  true  residence  and  domicile, 
the  law  of  her  domicile  and  not  the  law  of  the  place 
of  the  birth,  must  determine  the  status  of  the  issue.2 
Hence,  if  a  slave,  taken  by  her  master  temporarily 
to  a  State  where  slavery  does  not  exist,  or  a  fugitive 
slave  in  such  a  State  is  delivered  of  a  child,  the 
mother's  condition  of  slavery  in  either  case  remain- 
ing unchanged,  the  offspring  are  slaves.3 

§  80.  Another  conflict  of  laws  arises  where  the 
domicile  is  changed  subsequent  to  the  birth,  and 
the  law  of  the  new  domicile,  in  which  the  trial  of 
the  question  of  freedom  is  heard,  is  different.  In 
such  a  case  the  lex  fori  yields,  not  only  from  comity, 
but  because  the  status  of  the  offspring  being  deter- 
mined eo  instanti  upon  the  birth,  a  change  of  resi- 

1  Sidney  v.  White,  12  Ala.  (N.  S.)  731 ;  Spotts  v.  Gillespie,  6 
Rand.  566. 

2  Graham  v.  Strader,  5  B.  Monroe,  179 ;  S.  C.  7  Ibid.  635. 

8  For  the  discussion  of  the  question  as  to  the  effect  of  the  volun- 
tary removal  of  a  slave  into  a  State  not  tolerating  slavery,  for  a 
temporary  purpose,  see  post,  ch.  vii.  I  am  aware  that  a  decision,  at 
variance  with  the  text,  was  made  by  the  Supreme  Court  of  Pennsyl- 
vania, in  The  Commonwealth  v.  Holloway,  2  Serg.  &  Rawle,  305. 
That  decision,  however,  was  made  upon  an  express  provision  in 
their  statute,  and  does  not  meet  the  question.  If  it  was  not  so 
made,  it  would  not  deserve  consideration ;  as  the  real  difficulty,  viz., 
the  conflict  of  laws,  seems  never  to  have  been  suggested  by 
either  Court  or  counsel. 


80  LAW  OF   NEGRO   SLAVERY. 

dence  cannot  operate  as  a  change  of  rights.1  This 
rule  as  laid  down,  applies  to  cases  where  slavery  is 
recognized  and  exists  in  both  the  original  and  new 
domicile.  The  extent  to  which  the  comity  of  nations 
requires  the  tribunals  of  a  State  to  recognize  and 
enforce  the  private  rights  of  citizens  of  another  State, 
will  be  considered  hereafter. 

§  81.  A  still  more  complicated  case  of  conflict 
might  arise,  where  the  deed  or  other  instrument, 
determining  the  rights  of  the  applicant  for  freedom, 
is  executed  within  one  jurisdiction,  the  birth  occurs 
in  another,  and  the  trial  of  the  question  of  freedom 
is  heard  in  still  another.  In  other  words,  the  lex 
loci  contractus,  the  lex  soli  natalis,  and  the  lex  fori 
all  differ.  In  such  a  case  the  lex  loci  contractus 
would  generally  control  the  question.2  But  if  it  be 
in  conflict  with  the  policy  of  the  law  of  the  forum 
where  the  trial  is  had,  the  Court  will  not  enforce  a 
rule,  contravening  the  policy  of  their  own  govern- 
ment.3 

§  81  a.  If  the  domicile  of  the  female  slave,  at  the 
time  of  the  execution  of  the  deed  or  other  instru- 
ment of  emancipation,  be  within  another  jurisdic- 
tion, which  subsequently  becomes  the  solum  natale 
of  the  child,  in  that  case,  the  law  of  the  domicile 
would  control  the  lex  loci  contractus,  it  being  the 
policy  of  all  the  slaveholding  States  to  regulate  the 
condition  of  all  slaves  domiciled  within  their  juris- 
diction, so  long  as  they  remain  within  that  juris- 
diction. 

1  Sidney  v.  White,  12  Ala.  (N.  S.)  728. 

3  Story's  Conf.  of  Laws,  §  242,  et  seq. ;  Blackmore  v.  Phill,  7 
Yerger,  452. 

3  Story's  Conf.  of  Laws,  §  244,  and  authorities  there  cited. 


ORIGIN  AND   SOURCES   OF   SLAVERY.  81 

§  82.  We  shall  hereafter  consider,  in  another  con- 
nection, the  law  of  domicile,  as  applied  to  slaves.1 
For  the  present,  it  is  sufficient  to  state  that,  as  a 
general  rule,  the  domicile  of  the  master  is  that  of  the 
slave,  and  this  not  being  "  of  choice"  of  the  slave, 
but  by  operation  of  law  (necessarium) ,  by  no  act  of 
his  can  it  be  changed.8 

1  Sections  129-133. 

3  Phillimore  on  the  Law  of  Domicile,  25,  60. 


CHAPTER  IV. 

OF   THE   SLAVE   AS  A  PERSON — PERSONAL   SECURITY. 

§  83.  HAYING  ascertained  the  origin  and  sources 
of  negro  slavery,  and  having  traced  that  origin  to 
the  pure  or  absolute  slavery  existing  among  the 
tribes  of  Africa,  and  having  seen  that  negro  slavery 
is  in  no  wise  opposed  to  the  law  of  nature,  except  so 
far  as  the  power  to  kill  or  to  maim  may  be  claimed 
therefrom,  it  follows,  that  no  actual  enactment  of 
the  legislative  power  is  necessary  for  its  introduc- 
tion into  any  country  where  no  municipal  law  is 
thereby  infringed.  Hence,  we  find  it  true,  that, 
with  the  exception  of  Georgia  (where  it  was  at  first 
prohibited),1  no  law  is  found  on  our  statute  books 
authorizing  its  introduction. 

§  84.  The  condition  of  these  slaves  in  their  native 
country  having  been  one  of  absolute  slavery,  includ- 
ing the  power  over  life,  such  would  be  their  condi- 
tion in  the  country  to  which  they  were  removed, 
except  so  far  as  the  same  may  be  modified  by  the 
existing  laws  of  their  new  domicile,  and  such  subse- 
quent legislative  enactments  as  may  have  been  made 
for  their  benefit.  The  law  of  nature,  denying  the 
power  over  life  and  limb,  being  a  part  of  the  law  of 

1  See  Stephens'®  History  of  Georgia,  vol.  i. 


THE    SLAVE   AS   A   PERSON.  83 

every  civilized  state,  such  power  never  existed  in 
any  of  the  United  States,  although  it  required  muni- 
cipal law  to  prescribe  the  punishment  for  such 
offences.1  Many  subsequent  legislative  enactments 
have  been  made,  regulating  the  power  of  the  master, 
and  protecting  and  giving  rights  to  the  slave. 
Having  none  prior  to  these  enactments,  to  the  muni- 
cipal law  we  look  for  all  his  rights. 

§  84  a.  In  the  Eoman  law,  a  slave  was  a  mere 
chattel  (res).  He  was  not  recognized  as  a  person. 
But  the  negro  slave  in  America,  protected  as  above 
stated  by  municipal  law,  occupies  a_clmible  character 
o.f_person  ajid  property.  Having  now  ascertained 
who  are  and  may  be  slaves  in  America,  a  natural 
division  of  our  subject  suggests  itself  in  considering 
the  slave, — first,  AS  A  PERSON,  and  then,  AS  PROPERTY. 

§  85.  In  treating  of  slaves  as  persons,  we  shall 
inquire  of  their  rights  and  disabilities,  of  the  autho- 
rity and  rights  of  the  master,  and  of  the  relation  of 
slaves  to  persons  other  than  their  masters.  To  a 
great  extent,  these  necessarily  will  be  considered 
together,  yet,  as  far  as  possible,  we  shall  endeavor 
to  treat  them  in  the  order  in  which  they  are  named. 

§  86.  Of  the  three  great  absolute  rights  guaranteed 
to  every  citizen  by  the  common  law,  viz.,  the  right 
of  personal  security,  the  right  of  personal  liberty, 
and  the  right  of  private  property,  the  slave,  in  a 
state  of  pure  or  absolute  slavery,  is  totally  deprived, 
being,  as  to  life,  liberty,  and^property,  under  the 
absolute  and  uncontrolled  dominion  of  his  master,2 

1  See  The  State  v.  Mann,  2  Dev.  Law,  268. 

2  Coke  Litt.  116  b;  Neal  v.  Farmer,  9  Geo.  Rep.  555;  The 
State  v.  Mann,  2  Dev.  Law,  265;  Jackson  ex  dem.  &c.  v.  Lervey, 
5  Cow.  397;  Fable  v.  Brown,  2  Hill  Ch.  396. 


84  LAW  OP  NEGRO   SLAVERY. 

so  that  infringements  upon  these  rights,  even  by 
third  persons,  could  be  remedied  and  punished  only 
at  the  suit  of  the  master  for  the  injury  done  him  in 
the  loss  of  service  or  the  diminution  in  value  of  his 
slave.1  As  before  remarked,  however,  no  such  state 
of  slavery  exists  in  these  States.  And  so  modified 
is  the  slavery  here,  partly  by  natural  law,  partly  by 
express  enactment,  and  more  effectually  by  the  in- 
fluence of  civilization  and  Christian  enlightenment, 
that  it  is  difficult  frequently  to  trace  to  any  purely 
legal  sources  many  of  those  protecting  barriers,  the 
denial  of  whose  existence  would  shock  an  enlight- 
ened public  sense. 

1  §  87.  Statute  law  has  done  much  to  relieve  the 
slave  from  this  absolute  dominion,  and  the  master 
from  this  perilous  power,  more  especially  so  far  as 
regards  the  first  great  right  of  personal  security.  In 
all  of  the  slaveholding  States,  the  homicide  of  a 
slave  is  held  to  be  murder,  and  in  most  of  them,  has 
been  so  expressly  declared  by  law.2  In  Georgia, 

1  Authorities  cited  above.     The  rule  seems  to  be  held  different 
in  North  Carolina ;  the  battery  of  a  slave  by  a  third  person,  being 
held  indictable.    State  v.  Hall,  2  Hawks,  582.    Upon  close  exami- 
nation, however,  the  decision  seems  to  be  based  upon  a  usage  sanc- 
tioned by  the  acquiescence  of  the  legislature.     In  Athens  the  same 
rule  applied.     See  Smith's  Diet,  of  Or.  and  Rom.  Ant.  "  Servus." 
But  murder  of  a  slave  was  punished;  see  same,  and  authorities 
cited.     In  Rome,  the  master  might  kill  the  slave  at  pleasure,  until 
a  constitution  of  Claudius  enacted  that  it  should  be  murder.     Sue- 
tonius Claud.  25. 

2  Rev.  Code  of  N.  C.  192 ;  Statutes  at  Large  of  S.  C.  vol.  vi,  158 ; 
New  Digest  (Cobb)  Geo.  785,  982  ;  Laws  of  Alabama  (1823),  639  j 
Hutchinson's  Code  Miss.  519 ;  Civil  Code,  Louisiana,  Art.  192  j 
Rev.  Code  of  Missouri,  ch.  xlvii,  art.  viii,  §  39;  Laws  of  Ten- 


THE    SLAVE   AS   A   PERSON.  85 

Alabama,  Texas,  and  Arkansas,  the  provisions  for 
the  protection  of  the  person  of  the  slave  are  inserted 
in  their  respective  Constitutions,  thus  making  it  a 
part  of  the  fundamental  law,  and  beyond  the  reach 
of  ordinary  legislation.  Nor  has  the  legislation  of 
the  States  stopped  at  the  protection  of  their  lives, 
but  the  security  of  limbs  and  the  general  comfort  of 
the  body  are,  in  most  of  the  States,  amply  provided 
for,  various  penalties  being  inflicted  on  masters  for 
their  cruel  treatment ;  which  will  be  more  particu- 
larly considered  in  a  subsequent  chapter. 

§  88.  The  question  has  been  much  mooted, 
whether  in  the  absence  of  statute  laws,  the  homi- 
cide of  a  slave  could  be  punished  under  the  general 
law  prescribing  the  penalty  for  murder.  By  some 
courts  it  has  been  held,  that  so  soon  as  the  progress 
of  civilization  and  Christian  enlightenment  elevated 
the  slave  from  the  position  of  a  mere  chattel,  and 
recognized  him  for  any  purpose  as  a  person,  just  at 
that  moment,  the  homicide  of  him,  a  human  being, 
in  the  peace  of  the  State,  with  malice  aforethought, 
was  murder.  So  long  as  he  remained  purely  and 
unqualifiedly  property,  an  injury  upon  him  was  a 
trespass  upon  the  master's  rights.  When  the  law, 
by  providing  for  his  proper  nourishment  and  cloth- 
ing, by  enacting  penalties  against  the  cruel  treat- 
ment of  his  master,  by  providing  for  his  punishment 
for  crimes,  and  other  similar  provisions,  recognizes 
his  existence  as  a  person,  he  is  as  a  child  just  born, 
brought  for  the  first  time  within  the  pale  of  the 

nessee,  Car.  &  Nich.  676;  Laws  of  Texas  (Hartley),  76;  Statutes 
of  Arkansas  (1848),  4$. 


86  LAW  OF  NEGEO   SLAVERY. 

law's  protecting  power;  his  existence  as  a  person 
being  recognized  by  the  law,  that  existence  is  pro- 
tected by  the  law.1 

§  89.  It  has  been  objected  to  this  conclusion,  that 
if  the  general  provision  of  the  law  against  murder 
should  be  held  to  include  slaves,  why  would  not  all 
other  penal  enactments,  by  the  same  course  of  rea- 
soning, be  held  to  include  similar  offences  when 
committed  on  slaves,  without  their  being  specifically 
named  ?  The  reply  made  is  twofold.  1st.  ZT.be, 
law,  by  recognizing  the  existence  of  the  slave  as^n. 
person,  thereby  confers  no  rights  or  privileges  except 
such  as  are  necessary  to  protect  that  existence.  All 
Qther_rights_  mjisiube_^rjiiil£{Lsp£CjLally .  Hejice,  the 
penalties  for  rape  would  not  and  should  jnqt,  by 
such  implication,  be  made  to  extend  to  carnal  forcible 
knowledge  of  a  slave^  the^ojfen^e^not^fectin^  the 
existence  of  the  slave,  and  that  existence  being  the 
extent  of  the  right  which  the  implication  of  the  law 
granJs,.  2d.  Implications  of  law  will  always  be 
rebutted  by  the  general  policy  of  the  law,  and  it  is 
clearly  against  the  policy  of  the  law  to  extend  over 
this  class  of  the  community,  that  character  of  pro- 
tection which  many  of  the  penal  statutes  are  in- 
tended to  provide  for  the  citizen. 

1  State  v.  Reed,  2  Hawks,  454 ;  The  State  v.  Tackett,  1  Hawks, 
217;  McGren  v.  Gate's  Executors,  Minor's  (Ala.)  Rep.  8;  Mid- 
dleton  v.  Holmes,  3  Porter,  424  j  The  State  v.  Jones,  Walker's 
Miss.  Rep.  83;  Fields  v.  The  State,  1  Yerger,  156;  Kelly  & 
Little  v.  The  State,  3  S.  &  M.  518.  See  also  The  Common- 
wealth v.  Booth,  2  Va.  Cases,  394 ;  and  The  Commonwealth  v. 
Turner,  5  Rand.  678;  Worley  v.  The  State,  11  Humph.  172. 


THE   SLAVE   AS  A   PERSON.  87 

§  90.  In  addition  to  these  reasons,  some  of  the 
courts  have  striven  to  assimilate  the  condition  of  the 
slave  to  that  of  the  villain  in  Britain,  and  thence  to 
apply  to  slavery  here  such  rules  as  were  applicable 
to  villanage  there.  That  no  such  identity  exists  as 
would  justify  this  conclusion,  has  been  as  strenu- 
ously demonstrated.1  Other  courts  have  applied  to 

1  Neal  v.  Farmer,  9  Geo.  555 ;  The  Commonwealth  v.  Turner, 
5  Rand.  683 ;  Fable  v.  Brown's  Exr.  2  Hill  Ch.  390.  That 
slavery  existed  among  the  Saxons  prior  to  the  Norman  invasion, 
there  can  oe  no  doubt;  and,  as  far  back  as  the  laws  of  King 
Aethelbirht,  we  find  penalties  prescribed  for  the  homicide  of  a 
slave  by  a  stranger.  Ancient  Laws  and  Institutes,  3.  So,  in  the 
laws  of  King  Alfred,  we  find,  "He  who  smiteth  his  own  slave, 
and  he  die  not  on  the  same  day,  though  he  live  (but)  two  or  three 
nights,  he  is  not  altogether  so  guilty,  because  it  was  his  own  pro- 
perty ;  but  if  he  die  the  same  day,  then  let  the  guilt  rest  on  him." 
Ibid.  22;  with  which  compare  Exodus,  ch.  21  :  20,  21.  So  also 
by  the  laws  of  King  Etheldred,  "  If  an  Englishman  slay  a  Danish 
thrall,  let  him  pay  for  him  with  a  pound."  Ancient  Laws,  &c., 
122.  The  penalty  differed  much  from  that  for  slaying  a  free- 
man. So  among  the  laws  of  William  the  Conqueror,  "  Si  quis 
convictus  vel  confessus  fuerit,  in  jure  alium  occidisse,  det  were 
suum,  et  insuper  domino  occisi,  manbote  viz.  pro  homine  libero  x 
sol,  pro  servo,  xx  sol."  Ibid.  203.  Among  the  laws  of  "William, 
we  also  find,  "Item  si  servi  permanserint  sine  calumpnia  per 
annum  et  diem  in  civitatibus  nostris  vel  in  burgis,  vel  muris  vallatis, 
vel  in  castris  nostris,  a  die  ilia  liberi  efBciantur;  et  liberi  a  jugo 
servitutis  sue  sint  in  perpetuum."  Ibid.  213.  Strabo  informs  us 
that  during  the  Anglo-Saxon  times,  slaves  were  one  of  the  prin- 
cipal English  exports.  Strabo,  Lib.  IV,  p.  199  (Ed.  Paris,  1620); 
Barr.  on  Stat.  274.  (Consult  here  Studies  on  Slavery,  304.) 

Britton  says  (fol.  77),  that  villanage  commenced  after  Noah's 
flood ;  the  conquerors  making  villains  of  the  vanquished  "  to  use 
at  their  pleasure,"  "a  user  al  so  pleasur."  See  also  Brooks's  Abr., 
title  Villenage,  pi.  65.  The  old  writers,  Bracton,  Britton,  and 
Fleta,  use  Villanus  and  Servus  as  synonymous.  Bracton,  6  b,  7, 


88  LAW  OF  NEGRO   SLAVERY. 

the  master  and  slave,  the  principles  of  law  appli- 
cable to  masters  and  apprentices.  This  proposition, 
however,  has  not  been  adhered  to  with  any  tenacity. 
Another  able  judge  assumes  the  position,  that  "  the 
true  state  of  the  slave  must  be  ascertained  by  refer- 
ence to  the  disabilities  of  an  alien  enemy,  in  which 
light  the  heathen  were  anciently  regarded."1 

§  91.  To  all  of  this  reasoning  and  these  conclu- 
sions other  courts  have  withheld  their  assent,  and 
while  they  acknowledge  that  the  feelings  of  huma- 
nity, and  the  dictates  of  conscience  enlightened  by 
Christianity,  would  lead  them  to  these  conclusions, 
yet  they  have  been  unable  in  the  law  itself  to  feel 
themselves  justified  in  so  declaring  it.  In  their 
view,  the  slave  remains  in  a  state  of  pure  slavery, 
until  relieved  by  legislative  enactment,  and  the  pro- 
visions of  those  enactments  are  the  extent  of  their 

24  b,  25,  et  seq.;  Brit.  c.  xxxi;  Fleta,  Lib.  IV,  ch.  xi;  see  2 
Black.  Comm.  92 ;  Bun-ill's  Law  Diet.  Villein. 

The  Norman  Conquest,  with  its  introduction  of  feudal  tenures, 
so  far  modified  the  condition  of  the  Saxon  slaves,  as  to  make  the 
conditions  of  villains  materially  different  from  that  of  African 
slaves.  Yet,  it  is  an  undoubted  fact,  that  African  slavery  not  only 
existed  in  fact,  in  England,  but  was  recognized  fully  by  its  courts, 
prior  to  the  decision  in  Somersett's  case.  "  The  personal  traffic 
in  slaves  resident  in  England,"  says  Lord  Stowell  (in  the  case  of 
the  slave  Grace,  2  Hagg.  Adm.  Rep.  105),  "  had  been  as  public 
and  as  authorized  in  London,  as  in  any  of  our  West  India  Islands. 
They  were  sold  on  the  Exchange,  and  other  places  of  public  resort, 
by  parties  themselves  resident  in  London,  and  with  as  little  reserve 
as  they  would  have  been  in  any  of  our  West  India  possessions. 
Such  a  state  of  things  continued  without  impeachment,  from  a 
very  early  period,  up  to  nearly  the  end  of  the  last  century."  See 
also  pages  108, 109.  The  decision  in  Somersett's  case  was  in  1772, 
prior  to  our  Revolution. 

1  Fable  v.  Brown's  Exr.  2  Hill  Ch.  391,  392. 


THE   SLAVE   AS  A   PERSON.  89 

rights  and  protection ;  that  by  the  rules  for  the  con- 
struction of  statutes,  which  are  adopted  to  regulate 
the  conduct  of  citizens,  slaves  are  not  included  within 
their  provisions  unless  specifically  named  ;  that 
tkojigli  jaurder  is  defined  to  be  the  killing  of  a 
human  being,  &c.,  yet  rape  is  defined  to  be  the 
carnal  forcible  knowledge  of  a  female,  and  if  the 
killing  of  a  slave  be  murder,  the  carnal  forcible 
knowledge  pfjbfemale_slave  is  rape;  and  further, 
that  the  fact  that  every  slaveholding  State  has,  by 
penal  enactment,  provided  punishment  for  such 
offences  when  committed  on  the  persons  of  slaves,  is 
a  legislative  declaration  that  such  offences  were 
before  that  time  unprovided  for.  That  the  Colonies 
having  adopted  the  common  law,  and  negro  slavery 
having  no  existence  in  Great  Britain,  there  could  be 
necessarily  no  provision  of  that  law  in  reference  to 
it,  and  consequently  the  power  of  the  master  until 
limited  by  legislation  was  absolute.1  This  view  of 
the  question  seems  to  have  prevailed  in  the  courts 
of  the  British  West  Indies,  as  appears  from  the  act 
passed  in  Jamaica,  in  1792,  providing  punishments 
for  the  murder  and  maiming  of  slaves.2 

§  92.  The  view  we  have  taken  of  the  law  of 
nature  leads  us  to  a  different  conclusion  from  either 
of  these,  viz.,  that  by  that  law,  and  without  statu- 
tory enactment,  the  homicide  or  maiming  of  a  negro 
slave  is  prohibited  and  unlawful,  but  that  it  requires 
statutory  enactment  to  provide  punishment  for  such 

1  Neal  v.  Farmer,  9  Geo.  Rep.  555  j  Fable  v.  Brown's  Exrs.  2 
Hill  Ch.  395;  State  v.  Fleming,  2  Strobh.  464. 
8  1  Brown's  Civil  Law,  106,  note. 


90  LAW  OF  NEGRO   SLAVERY. 

offences.  Such  statutes  having  been  passed  long 
since  in  all  the  slaveholding  States,  the  question 
arises  now  only  collaterally ;  and  generally  upon  the 
point  whether  the  master  is  bound  to  prosecute 
criminally,  before  entering  his  civil  complaint  for 
damages. 

§  93.  The  same  course  of  reasoning  that  would 
\  make  the  killing  of  a  slave  murder,  without  statu- 
y  tory  enactment,  would  extend  to  the  offences  of 
,  manslaughter,  mayhem,  wounding,  and  assault  with 
intent  to  murder,  all  of  these  affecting  the  life  of  the 
slave.1  It  would  not  extend  to  an  ordinary  battery, 
and  it  would  seem  clear  upon  principle,  that  the 
battery  of  a  slave,  without  special  enactment,  could 
not  be  prosecuted  criminally.2  The  master's  civil 
remedy  would  be  the  only  mode  of  redress  against  a 
stranger.  Where  the  battery  was  committed  by  the 
master  himself,  there  would  be  no  redress  whatever, 
for  the  reason  given  in  Exodus  21  : 21,  "for  he  is 
his  money."3  The  powerful  protection  of  the 
master's  private  interest  would  of  itself  go  far  to 
remedy  this  evil.  Legislators,  however,  have  taken 
care,  as  before  remarked,  in  all  the  States,  to  protect 

1  Fields  v.  The  State,  1  Yerger,  126 ;  see  State  v.  Piver,  2 
Hayw.  79 ;  State  v.  Raines,  3  McCord,  533. 

3  A  different  rule  has  been  adopted  in  North  Carolina,  so  far  as 
the  battery  by  a  stranger  is  concerned.  The  Court  seem,  however, 
to  base  their  decision  upon  usage,  acquiesced  in  by  the  Legislature. 
State  v.  Hall,  2  Hawks,  582 ;  see  also  Commonwealth  v.  Booth,  2 
Virginia  Cases,  394.  In  accordance  with  the  text,  see  The 
State  v.  Maner,  2  Hill  (So.  Ca.),  454;  Hilton  v.  Caston,  2  Bailey, 
98. 

8  The  State  v.  Mann,  2  Dev.  (Law)  Rep.  263;  The  Common- 
wealth v.  Booth,  2  Virginia  Cases,  394. 


THE   SLAVE   AS  A   PERSON. 


by  stringent  enactments,  the  slave  from  the  cruel 
treatment  of  his  master. 

§  94.  The  protection  of  the  person  of  the  slave 
depending  so  completely  upon  statute  law,  it  be- 
comes a  question  of  importance,  what  words  in  a 
statute  would  extend  to  this  class  of  individuals  ? 
Generally,  it  would  seem  that  an  Act  of  the  Legis- 
lature would  operate  upon  every  person  within  the 
limits  of  the  State,  both  natural  and  artificial  j1  yet, 
where  the  provisions  of  the  statute  evidently  refer 
to  natural  persons,  the  courts  will  not  extend  them 
to  artificial.2  Nor  will  statutes  ever  be  so  construed 
as  to  lead  to  absurd  and  ridiculous  conclusions.3 
perience  has  proidiat 
monstrateo~that 

tion,  in  rights,  inj3iitiej3,J;hej^ 

of  a  common  system  of  laws.4     Hence,  the  conclu- 


sion, that  statutory  enactments  never  extend  to  or 
include  the  slave,  neither  to  protect  nor  to  render 
him  responsible,  unless  specifically  named,  or  in- 
cluded by  necessary  implication.5 

1  Smith's  Commentaries  on  Statute,  &c.,  §  544.  If,  from  a  view 
of  the  whole  statute,  the  intention  of  the  legislature  to  include 
slaves  is  manifest,  they  will  be  considered  as  included  in  the  word 
"  person."  State  v.  Edmund,  4  Dev.  340. 

a  Blair  v.  Worley,  1  Scammon,  178. 

3  Smith's  Commentaries,  &c.,  §§  517,  518,  et  seq. ;  Domat's  Civil 
Law,  Bk.  I,  tit.  i,  §  2,  pi.  7 ;  United  States  v.  Fisher,  2  Crunch, 
400;  Reports  of  Judges,  7  Mass.  523. 

4  Per  Nisbet,  J.,  in  Neal  v.  Farmer,  9  Geo.  579. 

5  I  am  aware  that  a  different  rule  has  been  adopted  in  Virginia. 
See  Dolly  Chappie's  case,  1  Virginia  Cases,  184 ;  Commonwealth 
v.  Carver,  5  Rand.  660.     In  accordance  with  the  text,  see  Wash 


LAW  OF   NEGRO   SLAVERY. 


§  95.  Statutes  having  declared  and  affixed  penal- 
ties to  the  offences  affecting  the  personal  security  of 
slaves,  it  behooves  us  to  inquire,  jbow^faiMth 


^iar  relatipnjpf_the__glave  jnay  affect  thejdeiences  of 
tho^ejihfli^l^ith^^  It 

would  seem  that  from  the  very  nature  of  slavery,  and 
the  necessarily  degraded  social  position  of  the  slave, 
many  acts  would  extenuate  the  homicide  of  a  slave, 
and  reduce  the  offence  to  a  lower  grade,  which  would 
not  constitute  a  legal  provocation  if  done  by  a  white 
person.1  Thus,  in  The  State  v.  Tackett,  it  was  held 
competent  for  one  charged  with  the  murder  of  a 
slave  to  give  in  evidence  that  the  deceased  was  tur- 
bulent, and  insolent,  and  impudent  to  white  persons.2 
^S.nd  an  assault  or  striking  by  a  slave  would,  in 
/many  cases,  amount  to  a  justification  of  a  homicide, 
which,  in  a  white  person,  would  only  mitigate  the 
offence.3  If  the  slave  is  in  a  state  of  insurrection, 
the  homicide  is  justifiable,  in  most  of  the  States,  by 
statute.  And  if  a  slave  is  killed,  who,  bging  found 
at  an  unlawful  assemblv^j^QjiikimniTo  rebel,  refuses 
to  surrender  and  resists  by  force,  thehomicide  is 
justifiable.4 

§  Ub'.  ±5ut  while  the  law,  from  the  necessity  of  the 
case,  will  thus  subject  the  slave  to  the  partial  con- 

v.  The  State,  14  S.  &  M.  120  ;  Opinion  of  Nott,  J.;  in  The  State 
v.  Whyte  &  Sadler,  2  N.  &  McC.  175. 

1  Pierce  v.  Myrick,  1  Dev.  345. 

3  1  Hawks,  210;  see  also  Ex  parte  Boylston,  2  Strobh.  41. 

3  Arthur  v.  Wells,  2  Rep.  Con.  C.  314;  The  State  v.  Cheatwood, 
2  Hill  (So.  Ca.),  461;  State  v.  Crank,  2  Bailey,  75. 

«  Smith  v.  Hancock,  4  Bibb's  Rep.  222.  In  Maryland,  see 
Dorse/s  Laws,  &c.,  65,  93. 


THE   SLAVE   AS   A    PERSON.  93 

trol  of  all  the  freemen  of  the  country,  yet  it  will 
not  sanction  any  wanton  violation  of  the  person  of 
the  slave.  Thus,  it  has  been  held,  that  a  white 
citizen  is  not  justified  in  shooting  a  negro  who  he 
orders  to  stop,  and  who  refuses  to  do  so,  even  though 
the  negro  be  a  fugitive  or  runaway.1  And  in  the 
case  of  Witsell  v.  Earnest  and  another,  it  was  held, 
that  even  though  the  negro  be  suspected  of  a  felony, 
and  be  a  fugitive,  a  person  not  clothed  with  the  au- 
thority of  law  to  apprehend  him,  cannot  lawfully 
kill  such  slave  while  flying  from  him  f  nor  would 
an  overseer  be  justified  in  shooting  a  negro  who  fled 
from  punishment.3 

And  so,  also,  the  mere  fact  that  the  party  com- 
mitting the  homicide  was  a  patrolman,  and  in  the 
exercise  of  his  duties  as  such,  will  not  justify  the 
killing  of  a  slave  flying  from  him.4 

§  97.  No  settled  rule  can  be  laid  down  as  to  the 
extent  of  the  justification  which  the  circumstances 
of  each  case  may  unfold.  This  we  may  say,  ,the 
lawjooks  favorably  u^on^sucb^conduct  as  tends  toj 
thejjrpper  subordination^  of  the  slave ;  bul_ajL_the 
game  jirne  looks  jwJtha_jealous_eye  upon  jill  such 
conduct  as  tends  to  unnficesaary  a,nd  ^ruel  {.rgfli.- 
ment. 

§  98.  The  personal  security  of  the  slave  being 
thus  protected  by  express  law,  becomes  quasi  a  right 
belonging  to  the  slave  as  a  person.5  How  far  may 

1  Arthur  v.  Wells,  2  Rep.  Con.  C.  S.  0.  314. 
«  1  Nott  &  McC.  182. 

3  The  State  v.  Will,  1  Dev.  &  Bat.  166 ;  Copeland  v.  Parker,  3 
Ired.  513.  *  Brooks  v.  Ashburn,  9  Geo.  Rep.  298. 

5  I  cannot  agree  with  the  Court,  in  South  Carolina,  that  "every 


LAW   OF   NEGRO    SLAVERY. 

the  slave  go  to  protect  that  right  ?  Subordination 
on  the  part  of  the  slave  is  absolutely  necessary,  not 
only  to  the  existence  of  the  institution,  but  to  the 
peace  of  the  community.  The  policy  of  the  law, 
therefore^  requires  that  the  slave  should  look  to  his 
master  and  the  courts  to  avenge  his  wrongs.  The 
rule,  therefore,  that  justifies  the  freeman  in  repelling 
force  by  force,  applies  not  to  the  slave. 

If,  however,  the  life  or  limb  of  the  slave  is  en- 
dangered, he  may  use  sufficient  force  to  protect  and 
defend  himself,  even  if  in  so  doing  he  kills  the  ag- 
gressor.1 Such  seems  to  have  been  the  civil  law.2 

§  99.  The  law  in  its  mercy  goes  still  farther,  and 
while  it  will  not  justify  the  slave  in  resisting  force 
by  force,  except  in  the  case  stated,  yet,  in  regard  for 
the  frailty  of  human  nature,  if  the  passions  of  the 
slave  be  excited  into  unlawful  violence  by  the  in- 

attempt  to  extend  to  the  slave  positive  rights,  is  an  attempt  to  recon- 
cile inherent  contradictions."  Kinloch  v.  Harvey,  Harp.  514. 
Nor  that  "in  the  very  nature  of  things,  he  is  subject  to  despotism." 
Ex  parte  Boylston,  2  Strobh.  43.  There  is  no  inconsistency  in 
speaking  of  the  rights  of  a  slave,  where  those  rights  are  well  de- 
fined by  law,  nor  is  there  any  inherent  difficulty  in  enforcing  those 
rights  by  law,  even  against  his  own  master.  Every  statute  passed 
to  protect  the  life  or  limb  of  the  slave,  gives  to  him  a  right  to  the 
protection  provided.  And  if  the  law  omitted,  the  Court  should  pro- 
vide a  remedy.  The  slaves  of  other  countries  have  positive  rights, 
and  yet  are  not  relieved  from  slavery. 

1  The  State  v.  Will,  a  negro,  1  Dev.  &  Bat.  121-165,  a  well-con- 
sidered cause,  decided  by  Judge  Gaston.  Per  Thatcher,  J.,  in 
Kelly  &  Little  v.  The  State,  3  S.  &  M.  526 ;  Dave  v.  The  State, 
22  Ala.  N.  S.  33.  Says  Blackstone,  "Self-defence,  as  it  is  justly 
called  the  primary  law  of  nature,  so  it  is  not,  neither  can  it  be, 
in  fact,  taken  away  by  the  law  of  society."  Vol.  iii,  ch.  i ',  see 
also  Puffendorf,  Lib.  II,  ch.  v,  §  10,  p.  151 ;  Montesquieu,  Bk. 
XV,  ch.  xvi. 

3  "Vim  vi  defendere,  omnes  leges  omniaque  jura  permittunt." 


THE   SLAVE   AS   A    PERSON.  95 

humanity  of  his  master  or  others,  it  will  extenuate 
the  offence,  and  if  a  homicide  be  committed,  will 
hold  these  circumstances  as  a  rebuttal  of  the  pre- 
sumption of  malice.1  This  extenuation  has  been 
by  some  courts  confined  to  cases  of  homicide  by 
a  slave  of  one  of  his  own  condition,  the  reason 
given  being  "  a  stern  and  unbending  necessity."3  I 
cannot  yield  my  assent  fully  to  this  proposition  as 
being  well-founded  in  law.  The  duty  of  the  slave 
to  obey,  and  his  habit  of  subordination,  would  re- 
quire a  greater  provocation  to  justify  an  "  infirmity 
of  temper  or  passion ;"  but  still  there  are  circum- 
stances, where  such  provocation  might  be  given,  es- 
pecially by  others  than  the  master,  as  to  reduce  the 
offence  by  the  slave  from  murder  to  manslaughter.3 
§  100.  In  some  of  the  States  the  statutes  provide 
only  for  the  punishment  of  the  murder  of  a  slave, 
without  specifying  or  referring  to  the  minor  offences 
of  manslaughter,  or  an  assault  with  intent  to  mur- 
der, being  most  probably  an  oversight  on  the  part 
of  the  draughtsman.  In  such  a  case,  a  verdict  of 
guilty  of  manslaughter,  it  would  seem,  would  leave 
the  Court  to  pass  judgment  as  if  no  statute  had  been 
enacted.4 

1  Per  Gaston,  J.,  in  State  v.  Will,  1  Dev.  &  Bat.  171 ;  see  also 
Dave  v.  The  State,  22  Ala.  N.  S.  33.    This  principle  was  carried  very 
far  in  the  case  of  The  State  v.  Csesar,  9  Ired.  391,  where  the  slave 
was  declared  guilty  only  of  manslaughter,  for  killing  a  white  man, 
who  was  beating  his  friend.     The  Chief  Justice  dissented,  and  I 
think,  properly. 

2  John  v.  The  State,  16  Geo.  203 ;  William  v.  The  State,  18 
Geo.  356. 

3  See  post,  §§  322,  323  j  and  The  State  v.  Jarrott,  1  Ired.  76 ; 
Dave  v.  The  State,  22  Ala.  33. 

4  The  State  v.  Fiver,  2  Hayw.  79. 


96  LAW  OF  NEGRO   SLAVERY. 

§  101.  The  law  is  different,  however,  as  to  the 
offence  of  an  assault  with  intent  to  murder,  for  the 
statute,  by  making  the  killing  of  a  slave  murder,  con- 
stituted the  offence,  at  the  same  time,  a  felony. 
And,  according  to  the  common  law,  an  attempt  to 
commit  a  felony,  even  though  the  felony  be  created 
by  statute,  is  indictable :  such  attempt  being  a  mis- 
demeanor.1 

§  102.  Before  leaving  the  subject  of  the  homicide 
of  slaves,  it  is,  perhaps,  well  to  remark,  that  where 
a  slave  is  killed,  the  presumption  of  law  is  the  same 
as  in  other  cases  of  homicide,  that  it  was  done  mali- 
ciously.2 On  account  of  the  frequent  and  necessa- 
rily private  relation  of  master  and  slave,  remote 
most  generally  from  the  presence  and  view  of  any 
white  person  competent  to  be  a  witness,  this  pre- 
sumption may  and  must  often  operate  to  the  preju- 
dice of  the  slayer,  there  being  no  means  of  proving 
the  provocation  given.  Under  this  view,  the  Act  of 
South  Carolina  provides,  that  where  the  homicide  is 
committed,  and  no  competent  witness  is  present  at 
the  time  to  testify  to  the  whole  transaction,  the  affi- 
davit of  the  accused  is  admitted  before  the  jury, 
explanatory  and  exculpatory  of  his  conduct  on  the 
occasion.3  In  the  other  States,  upon  principle,  it 
would  seem,  that  while  the  presumption  is  admitted, 
the  jury  should  consider  the  peculiar  relations  of 
master  and  slave,  as  to  some  extent  rebutting  its 
force  and  effect. 

*  The  State  v.  Maner,  2  Hill  (So.  Ca.),  453 ;  1  Hawkins's  Pleas 
of  the  Crown,  73, 113.        •  The  State  v.  Cheatwood,  2  Hill,  464. 
8  The  State  v.  Raines,  3  McC.  533. 


) 


CHAPTER  V. 

OF   PERSONAL   SECURITY. — CONTINUED. 

§  103.  WITH  reference  to  the  minor  offences 
created  by  statute,  protecting  the  person  of  the  slave 
from  torture,  wounding,  maiming,  and  cruel  and  in- 
human treatment,  the  great  diversity  of  the  statu- 
tory provisions  and  penalties  prescribed  in  the  dif- 
ferent States,  renders  it  impossible,  within  the  limits 
of  this  treatise,  to  analyze  carefully  each  statute, 
and  consider  its  practical  operation.  A  few  general 
remarks,  upon  the  general  current  of  legislation,  will 
suffice  our  purpose. 

§  104.  On  account  of  the  perfectly  unprotect( 
and  helpless  position  of  the  slave,  wrhen  his  master 
is  placed  in  opposition  to  him :  not  being  allowed  to 
accumulate  property,  with  which  to  provide  means 
for  the  prosecution  of  his  rights ;  his  mouth  being 
closed  as  a  witness  in  a  court  of  justice ;  his  hands 
being  tied,  even  for  his  own  defence,  except  in  the 
extreme  cases  before  alluded  to ;  his  time  not  being 
at  his  service,  even  for  the  purpose  of  procuring 
testimony;  and  his  person  and  conduct  being  en- 
tirely under  the  control  of  him  against  whom  he 
stands  arrayed,  the  courts  should,  and  do,  feel  them- 
selves to  be  his  guardian  and  protector,  and  will 
7 


LAW   OP   NEGRO    SLAVERY. 

provide  for  the  defence  of  his  rights,  as  for  a  ward 
of  the  Court.  Hence,  in  some  of  the  States,  by 
statute,  the  court  is  required  to  assign  him  counsel 
learned  in  the  law;1  and,  in  others,  the  very  penalty 
affixed  to  a  conviction  for  cruel  treatment  by  the 
master,  is  the  emancipation  of  the  slave.2  In  others, 
the  penalty  is,  in  part,  the  sale  of  the  slave.3 

§  105.  This  is  one  of  the  most  vulnerable  points 
in  the  system  of  negro  slavery,  and  should  be  far- 
ther guarded  by  legislation.  Large  compensation 
should  be  provided  for  informers,  upon  the  convic- 
tion of  the'master  of  cruel  treatment;  and  perhaps 
the  best  penalty  that  could  be  provided  upon  con- 
viction, would  be  not  only  the  sale  of  the  particular 
slave  cruelly  treated,  but  of  all  the  slaves  owned  by 
the  offender,  and  a  disqualification  forever  of  owning 
or  possessing  slaves. 

§  106.  As  to  what  amounts  to  cruel  treatment,  is 
a  question  which  necessarily,  to  some  extent,  must 
be  submitted  to  the  jury.4  The  general  principle 
would  be.  that  the  master's  right  to  enforce  obedience 
and  subordination  on  the  part  of  the  slave  should, 

1  Constitution  of  Arkansas,  Art.  IV,  §  25 ;  of  Missouri,  Art.  Ill, 
§  27 ;  Rev.  Stat.  of  N.  Ca.  583 ;  Eev.  Code  of  Va.  787,  and 
others. 

8  Civil  Code  of  Louis.  Art.  192.  In  Tennessee,  if  a  slave  is  not 
"  comfortably  fed  and  clothed,"  the  master  is  bound  to  pay  for 
everything  he  steals.  Caruthers  &  Nicholson's  Digest,  675. 

8  By  the  Constitutions  of  Alabama  and  Texas,  in  such  cases,  the 
slave  shall  be  sold  by  law.  Laws  of  Ala.  638 ;  Hartley's  Digest, 
76. 

4  Kelly  &  Little  v.  The  State,  3  Sm.  &  M.  518;  The  State  v. 
Bowen,  3  Strobh.  573. 


PERSONAL    SECURITY.  99 

as  far  as  possible,  remain  intact.  Whatever  goes 
beyond  this,  and  from  mere  wantonness  or  revenge 
inflicts  pain  and  suffering,  especially  unusual  and 
inhuman  punishments,  is  cruelty,  and  should  be 
punished  as  such.  And  though  the  statute  creating 
the  offence  specifies  particular  acts  of  cruelty,  yet 
it  has  been  held,  that  other  acts  of  cruelty,  though 
of  a  minor  grade  than  those  specified,  were  indict- 
able under  the  general  description  of  cruel  punish- 
ment.1 

§  107.  Another  consequence  of  slavery  is,  that 
the  violation  of  the  person  of  a  female  slave,  car- 
ries with  it  no  other  punishment  than  the  damages 
which  the  master  may  recover  for  the  trespass  upon 
his  property.2  Among  the  Romans  there  was  also 
given  the  master,  an  action  for  the  corruption  of  his 
slave,  in  which  double  damages  were  given.3  This, 
however,  was  founded  also  upon  the  idea  of  the  in- 
jury to  the  property.  Among  the  Lombards,  if  a 
master  debauched  his  slave's  wife,  the  slave  and  his 
wife  were  restored  to  their  freedom.4  The  laws  of 
King  Alfred  provided  a  pecuniary  compensation  to 
the  master  for  the  ravishment  of  his  slave.5  These 
laws  are  suggestive  of  defects  in  our  own  legislation. 

It  is  a  matter  worthy  the  consideration  of  legis- 

1  The  State  v.  Wilson,  Cheves  R.  163. 
3  Dig.  Lib.  XLVII,  tit.  x,  §  25. 

3  Digest,  Lib.  XI,  tit.  3,  §  lj  Lib.  XLVIII,  tit.  v,  §  6;  Lib. 
XLVII,  tit.  x,  §  25 ;  Heinec.  Antiq.  Rom.  Lib.  Ill,  tit.  iii,  §  9. 

4  Lib.  I,  tit.  32,  §  5. 

5  Ancient  Laws,  &c.  35.     The  penalty  against  a  male  slave  for 
a  rape  of  a  female  slave  was,  "  let  him  make  lot  with  his  testicles." 
Ibid. 


100  LAW  OP  NEGRO   SLAVERY. 

lators,  whether  the  offence  of  rape,  committed  upon 
a  female  slave,  should  not  be  indictable ;  and  whether, 
when  committed  by  the  master,  there  should  not  be 
superadded  the  sale  of  the  slave  to  some  other  mas- 
ter. The  occurrence  of  such  an  offence  is  almost  un- 
heard of;  and  the  known  lasciviousness  of  the  negro, 
renders  the  possibility  of  its  occurrence  very  remote. 
Yet,  for  the  honor  of  the  statute-book,  if  it  does 
occur,  there  should  be  an  adequate  punishment.1 

§  108.  Having  thus  inquired  into  the  condition  of 
the  slave  in  reference  to  personal  security  under  the 
laws  of  the  United  States,  it  might  be  profitable  to 
compare  this  condition  with  that  of  slaves  in  other 
countries  and  at  other  ages.  Among  the  Jews  the 
killing  of  a  slave  went  unpunished,  unless  the 
death  was  immediate.  If  the  master  maimed  the 
slave  by  putting  out  an  eye  or  knocking  out  a  tooth, 
the  slave  was  thereby  emancipated.2  A  similar  law 
was  enacted  by  Alfred  the  Great,  as  to  the  murder 
of  a  slave  by  his  master,  though  no  civil  punishment 
was  prescribed.3  Among  the  Anglo-Saxons  the 
murder  of  a  slave  by  his  own  master  was  entirely 
unpunished  by  the  civil  courts.4  If  the  homicide 
was  committed  by  a  stranger,  the  punishment  was 
the  payment  to  the  master  of  a  pound.5  So,  also, 
.the  laws  of  Henry  I,  of  England.  "  Qui  servum 
suum  occiderit  suum  peccatum  est  et  dampnum ;  si 

1  See  Montesq.  Book  XV,  ch.  xi. 

3  Exodus,  ch.  xxi,  v.  20,  21,  26,  27. 
8  Ancient  Laws  and  Institutes,  22. 

4  Ancient  Laws  and  Institutes  of  England,  272,  n.  cii. 

5  Ancient  Laws,  &c.  122;  Laws  of  King  Ethelred,  §  5 ;  so,  also, 
Laws  of  William  the  Conqueror,  Ibid.  213. 


PERSONAL    SECURITY.  101 

ipso  die,  quo  vulneratus  est,  vel  alio  modo  afflictus, 
tanquam  in  manibus  domini  sui  moriatur  crudelius 
est  et  gravius,  sicut  in  lege  Moysis  scriptum  est."1 
When  Saxon  slavery  became  modified,  and  feudal 
villanage  took  its  place,  the  murder  or  maiming  of  a 
villain  was  indictable,  but  no  other  cruel  treatment 
was  within  the  interdict  of  the  law.2  The  Roman 
law  gave  the  master  absolute  power  over  the  life 
and  limbs  of  the  slave.  He  might  maim  or  destroy 
them  at  pleasure.  It  is  related  of  a  citizen  that  he 
caused  the  head  of  a  slave  to  be  cut  off,  for  the 
gratification  of  a  guest  who  had  never  witnessed  such 
an  exhibition.3 

Subsequently,  however,  by  a  constitution  of  Clau- 
dius, the  killing  of  a  slave  was  declared  murder ; 
and  certain  cruel  treatment  worked  an  emancipation 
of  the  slave.4  And  by  a  previous  constitution  of 
Antoninus,  if  the  master  was  convicted  of  cruel 
treatment  to  his  slave,  he  was  compelled  to  sell  him, 

1  Ibid.  253.  By  the  laws  of  Henry  I,  the  penalty  on  a  stranger 
for  the  murder  of  a  slave  was  increased  to  a  larger  fine.  Ibid.  251. 

8  Smith's  Master  and  Servant,  xxvii.  An  appeal  of  murder  was 
given  to  the  villain  for  the  murder  of  his  father.  The  judgment  on 
conviction  was  the  freedom  of  the  villain.  Co.  Litt.  123  a. 

8  Juvenal,  Sat.  V,  represents  a  lady  ordering  the  death  of  her 
slave,  who  was  represented  to  her  as  being  innocent.  Her  answer 
was: 

"  Nil  fecerit  esto, — 
Sic  volo,  sic  jubeo,  stet  pro  ratione  mea  voluntas." 

So,  also,  he  represents  another  lady,  in  Sat.  VI,  223,  exclaiming  : 
"  0,  demens  !  ita  servus  homo  est  ?" 
4  Sueton.  Claud.  25,  cited  in  Smith's  Diet. 


102  LAW  OF   NEGRO   SLAVERY. 

and  the  slave  was  empowered  to  make  his  complaint 
to  the  proper  authority.1 

§  109.  In  ancient  Athens,  the  life  and  person  of  a 
slave  were  protected  by  law.  And  in  case  of  cruel 
treatment  by  his  master,  the  slave  could  take  shelter 
in  the  temple  of  Theseus,  and  there  claim  the  privi- 
lege of  being  sold  by  him.2 

By  the  provisions  of  the  Code  Noir,  a  negro  slave 
in  the  French  West  Indian  Islands,  by  cruel  treat- 
ment, was  forfeited  to  the  crown,3  and  owners  con- 
victed of  such  offences  were  obliged  to  sell  all  the 
slaves  they  had,  and  incapacitated  from  afterwards 
holding  such  property.4 

In  the  Spanish  and  Portuguese  colonies  the  laws 
seem  still  more  favorable  for  the  slave.  Ill-usage 
entitled  the  slave  to  enfranchisement,  or  else  a  sale 
to  another  master,  or  the  purchase  of  his  own  free- 
dom upon  a  fair  valuation.5 

Among  the  German  states,  the  jurisdictio  patri- 
monialis  gave  to  the  lord  or  patron  the  right  to  chas- 
tise in  moderation  (modice  castigandi)  their  serfs  or 
prsedial  slaves.6  But  among  the  ancient  Germans 

1  Seneca,  De  Benef.  iii,  22  ;  Heinec.  in  Elem.  Jur.  Pandec.  Pt.  I, 
Lib.  I,  §  134,  says,  "  Verum  etiam  omnis  ssevitia  dominorum  extra 
ordinem  vendicatur." 

3  Xenoph.  De  Rep.  Ath.  i,  10  j  Eurip.  Hec.  287,  288 ;  Meier. 
Att.  Proc.  p.  403  j  Smith's  Diet,  of  Gr.  and  Rom.  Ant.  "  Servus," 
and   many  authorities  there  cited.     Becker's  Charicles,  276,  et 
seq.  3  Code  Noir,  Art.  42. 

4  Les  Annales  du  conseil  souverain  de  la  Martinique,  tome  i,  pp. 
282-284,  cited  in  Stephens  on  West  Indian  Slavery,  vol.  i,  119. 

5  See  Stephens,  on  West  Indian  Slavery,  vol.  i,  119,  and  autho- 
rities there  cited. 

6  Heinec.  Elem.  Jur.  Pand.  Lib.  I,  §  137. 


PERSONAL   SECURITY.  103 

and  Franks,  the  master  exercised  the  "jus  vitse 
necisque,"  though  we  are  told,  "  non  atrociter,  sed 
turn  demum  si  servi  hostilem  induissent  animum."1 

After  the  introduction  of  Christianity,  though  the 
homicide  of  a  slave  was  unpunished  by  law,  the 
Church  inflicted  penalties  therefor.2  Subsequently, 
about  the  twelfth  century,  it  was  modified  by  law, 
as  stated  by  Heineccius,  into  the  jurisdictio  patrimo- 
nialis.3 

§  110.  The  law  of  slavery  in  the  British  East 
Indies  (being  the  Hindoo  and  Mohammedan  Law, 
adopted  and  enforced  by  the  British  courts),4  treated 
the  slave  as  the  absolute  property  of  the  master, 
made  no  provision  for  the  protection  of  the  slave 
from  the  cruelty  of  his  master,  not  limiting  the 
master's  power,  even  over  the  life  and  limb  of  the 
slave.5 

In  ancient  Spain,  Gaul,  Poland,  Russia,  Bohemia, 
Denmark,  Sweden,  Belgium,  and  Helvetia,  the  power 
of  the  master  or  lord  over  his  slave  or  serf  was  ab- 
solute, he  being  the  sole  judge  in  all  cases,  and  being 
allowed  to  coerce  "verberibus  flagellis,  aliisque 
poenis."6  This  differed  from  the  condition  of  the 

1  Potgiesser,  De  Stat.  Serv.  Lib.  II,  cap.  i,  §§  4,  6,  7. 

2  Ibid.  §  10.  3  Ibid.  §§  28-33. 

4  Slavery  in  India,  by  W.  Adams,  26 ;  Harrington's  Analysis  of 
Laws,  vol.  i,  pp.  1,  5,  6,  20,  67,  68 ;  McNaghten's  Hindoo  Law, 
vol.  i,  p.  113. 

5  Colebrooke's  Official  Report,  found  in  Harrington's  Analysis, 
and  also  in  Appendix  to  Adam,  on  Slavery  in  India,  pp.  246, 
247. 

6  Potgiesser,  De  Statu  Servorum,  Lib.  II,  cap.  i,  §§  37,  38,  and 
authorities  cited. 


i 

104  LAW  OF  NEGRO   SLAVERY. 

slave  at  Rome  in  later  days  in  this,  that  the  master's 
power  over  the  latter,  though  recognized  by  law,  was 
subject  to  the  supervision  of  the  civil  courts,  while 
among  the  German  nations  and  those  of  German 
extraction,  the  master  or  lord  had  jurisdiction  inde- 
pendent of  other  courts,  of  all  questions  touching 
the  vassal  or  slave.1 

1  Potgiesser,  De  Statu  Servorum,  Lib.  II,  cap.  i,  §§  39,  40,  and 
41. 


CHAPTER  VI. 

OF  PERSONAL  LIBERTY. 

§  111.  THE  right  of  personal  liberty  in  the  slave 
is  utterly  inconsistent  with  the  idea  of  slavery,  and 
whenever  the  slave  acquires  this  right,  his  condition 
is  ipso  facto  changed.  Hence,  the  enjoyment  of  it 
for  a  number  of  years  has  been  held  to  be  strong  pre- 
sumptive evidence  of  former  emancipation.1 

§  112.  Blackstone  defines  this  personal  liberty  to 
"  consist  in  the  power  of  locomotion,  of  changing 
situation  or  moving  one's  person  to  whatsoever  place 
one's  own  inclination  may  direct,  without  imprison- 
ment or  restraint,  unless  by  due  course  of  law."2 
The  slave,  while  possessing  the  power  of  locomotion, 
moves  not  as  his  own  inclination  may  direct,  but  at 
the  bidding  of  his  master,  who  may,  of  his  own  will,* 
imprison  or  restrain  him,  unless  he  thereby  infringes 
some  provision  of  statute  law.  So  utterly  opposite 
is  the  position  of  the  slave  from  that  of  the  freeman 
in  respect  to  this  right,  that  we  could  not  better  de- 
fine his  condition,  than  to  say  it  is  the  reverse  of 
that  of  the  freeman. 

1  The  State  v.  Hill,  2  Speers,  150;  Hunter  v.  Shaffer,  Dudley 
(Ga.)  Rep.  224;  Fox  v.  Lambson,  3  Halsted,  275;  Linam  v. 
Johnson,  2  Bailey,  137. 

•  B.  I,  p.  134. 


106  LAW  OF  NEGRO    SLAVERY. 

§  112  a.  But  while  the  slave's  power  of  locomotion 
is  thus  within  the  absolute  control  of  the  master,  no 
third  person  has  any  right  to  restrain  or  imprison 
him,  except  by  order  of  the  master,  or  in  cases  pro- 
vided by  law.  Hence,  disobedience  of  a  slave  to  the 
order  of  a  person  who  has  no  right  to  control  him, 
in  the  absence  of  statute  law,  would  be  no  justifica- 
tion to  such  person  for  a  battery  or  other  injury 
committed  on  the  slave.1 

§  113.  Reasons  of  policy  and  necessity,  however, 
require  that  so  long  as  two  races  of  men  live  together, 
the  one  as  masters  and  the  other  as  dependents  and 
slaves,  to  a  certain  extent,  all  of  the  superior  race 
shall  exercise  a  controlling  power  over  the  inferior.2 
If  the  sla.ve  feels  that  he  is  solely  under  the  power 
and  control  of  his  immediate  master,  he  will  soon 
become  insolent  and  ungovernable  to  all  others.  If 
the  white  man  had,  then,  no  right  by  law  to  control, 
the  result  would  be,  the  excitement  of  angry  pas- 
sions, broils,  and  bloorj^prl  JTTpnpp  have  arisen,  in 


lie  States,  the  various  police  and  patrol  regulations, 
iving  to  white  persons  other  than  the  master,  under 
ertain  circumstances,  the  right  of  controlling,  and, 
a  some  cases,  correcting  slaves.  But  if  the  white 
erson  exceeds  the  authority  given,  and  chastises  a 
lave  who  has  given  no  provocation,  he  is  liable  for 
lie  trespass.3 
""$~114:.  Necessarily,  much  of  the  time  of  the  slave 

1  White  v.  Chambers,  2  Bay.  70.  This  case  goes  still  farther, 
and  holds,  that  insolence  from  the  slave  would  not  justify  a  bat- 
tery. See  also  ante,  §  96. 

3  Ex  parte  Boylston,  2  Strobh.  43 ;  ante,  §  96. 

8  Caldwell  v.  Langford,  1  McMul.  275. 


PERSONAL   LIBERTY. 

is  not  employed  in  his  master's  service.  The  long 
hours  of  the  night,  the  Sabbath  day,  and  the  various 
holidays,  are  times  when,  by  the  permission  of  mas- 
ters, slaves  enjoy  a  quasi  personal  liberty.  At  such 
times,  it  cannot  be  expected  that  the  watchful  eye 
of  the  master  can  follow  them.  Frequent  and  large 
collections  of  them  would  necessarily  occur,  and, 
having  no  business  to  occupy  their  thoughts  and 
conversation,  mischief  and  evil  would  be  the  conse- 
quence of  their  assemblage.  It  has  been  found  ex- 
pedient and  necessary,  therefore,  in  all  the  slave- 
holding  States,  to  organize,  in  every  district,  a  body 
of  men,  who,  for  a  limited  time,  exercise  certain 
police  powers,  conferred  by  statute,  for  the  better 
government  of  the  slave,  and  the  protection  of  the 
master.  Upon  these  policemen  or  patrol,  for  the 
time,  greater  powers  and  privileges  are  necessarily 
conferred,  for  the  execution  of  their  office,  in  con- 
trolling the  liberty  and  movements  of  the  slave. 

§  115.  The  power  and  authority  of  the  patrol, 
however,  are  limited  by  the  statutes  prescribing  them, 
and  they  are  not  at  liberty  to  overleap  these  bounds.1 
Hence,  in  South  Carolina,  it  was  held,  that  under 
the  authority  to  disperse  unlawful  assemblies  of  ne- 
groes, the  patrol  had  no  right  to  interfere  with  an 
open  assemblage,  for  the  purpose  of  religious  wor- 
ship, where  white  persons  were  also  assembled.2  Nor 
with  an  orderly  meeting  of  slaves,  with  the  consent 
of  their  masters,  upon  the  premises  of  a  slaveholder, 

1  Per  Johnson,  J.,  in  Bell  v.  Graham,  1  N.  &  McC.  281  j  Tate 
v.  O'Neal,  1  Hawks,  418. 

a  Bell  v.  Graham,  1  N.  &  McC.  281. 


108  LAW  OF   NEGRO   SLAVERY. 

with  his  permission  and  occasional  presence.1  Nor 
can  the  patrol  correct  a  slave  giving  no  provocation, 
who  is  without  his  master's  inclosure,  with  a  permit 
or  ticket  authorizing  it.2 

If  the  patrol  inflict  excessive  punishment  upon  a 
slave,  they  will  be  liable  to  the  master  for  the  tres- 
pass. Some  degree  of  discretion,  however,  is  neces- 
sarily allowed  them.3 

§  116.  The  necessity  for  patrol  regulations  being 
to  control  slaves  when  not  under  the  control  of  their 
masters,  it  would  seem  that  the  patrol,  upon  prin- 
ciple, could  never  interfere  with  the  master's  control 
of  his  own  slave,  and  upon  his  own  premises.4  It 
would  require  very  express  enactment  to  justify  such 
interference. 

§  117.  Yet  the  master's  privilege  extends  only  to 
his  own  slaves,  and  he  cannot  so  act  towards  them 
as  to  interfere  or  injure  his  neighbors.  Hence,  the 
enactments  in  many  States,  against  persons  permit- 
ting assemblages  of  the  slaves  of  others  upon  their 
premises,  without  the  consent  of  their  owners.5 
Hence,  also,  a  master,  in  many  States,  is  prohibited 
from  furnishing  spirituous  liquors  to  his  own  slaves 
in  such  quantities  as  to  enable  them  to  furnish 
others.6  Hence,  also,  in  almost  all  the  States,  the 
penalties  against  the  master  for  permitting  his  slaves 

1  State  v.  Boozer,  5  Strobh.  21 ;  The  State  v.  Boyce,  10  Ired. 
536.  »  Caldwell  v.  Langford,  1  McMul.  275. 

3  Tate  v.  O'Neal,  1  Hawks,  418 ;  see  ante,  §  96. 

4  The  State  v.  Boozer,  5  Strobh.  21. 

5  Commonwealth  v.    Booth,   6  Rand.  669 ;    Commonwealth  v. 
Foster,  5  Grat.  695 ;  State  v.  Brown,  8  Humph.  89. 

•  The  State  v.  Weaks,  7  Humph.  522. 


PERSONAL   LIBERTY.  109 

to  hire  their  own  time,  or  to  go  at  liberty,  to  the 
injury  of  others.1 

§  118.  To  restrain  the  slave  altogether  from  leav- 
ing his  master's  premises,  during  the  time  that  he 
is  not  employed  in  his  master's  business,  would  be 
unnecessarily  harsh  towards  that  dependent  class. 
Hence,  by  the  permission  of  the  master,  the  slave 
may  be  allowed  to  travel  the  highway,  or  to  visit 
and  remain  at  other  places ;  in  which  event,  he  is 
not  subject  to  be  controlled  or  corrected  by  the 
patrol,  unless  found  violating  some  provision  of  law.3 
The  evidence  of  such  permission  is  called  a  permit 
or  pass.  The  particularity  with  which  it  should  be 
written,  and  what  it  should  contain,  must  necessa- 
rily depend  upon  the  requisition  of  the  statutes 
regulating  patrols.  A  substantial  compliance  with 
the  statute  is  sufficient.3  On  the  other  hand,  the 
master  is  not  permitted  to  violate  the  whole  policy 
of  the  legislation  of  a  State  by  giving  his  slave  a 
"  permit"  or  "  pass"  for  an  indefinite  or  unreasonable 
period  of  time,  especially  if  it  professes  to  allow  the 
slave  privileges  forbidden  to  the  slave,  and  penal  in 
the  master.4 

§  119.  From  this  ^<m  liberty  of  the  slave,  during 
the  Sabbath  and  other  holidays,  flow  many  interest- 
ing questions  as  to  the  liability  of  the  master  or 
hirer  for  the  acts  of  the  slave  at  such  times,  which 
will  be  considered  hereafter. 

1  Commonwealth  v.  Gilbert,  6  J.  J.  Marsh.  184;  Parker  v.  Com- 
monwealth, 8  B.  Monr.  30. 

2  The  State  v.  Boozer,  5  Strobh.  21. 

3  Caldwell  v.  Langford,  1  McMul.  275. 

*  Jarrett  v.  Higbee,  5  Monroe,  550,  551. 


LAW  OF   NEGRO    SLAVERY. 

§  120.  The  slave  being  deprived  of  the  right  of 
personal  liberty,  cannot,  by  any  act  of  his,  obtain  it 
without  the  consent  of  his  master.  Hence,  though 
he  escapes  from  the  actual  personal  control  of  the 
master,  and  while  a  fugitive  enjoys  actual  liberty, 
he  is  at  all  times  subject  to  be  retaken,  and  placed 
again  under  the  power  of  the  master.  In  fact,  by 
placing  himself  beyond  the  pale  of  the  master's  pro- 
tecting power,  and  being,  for  the  time  and  pro  tanto, 
in  a  state  of  rebellion  to  his  lawful  authority,  he 
deprives  himself  of  the  exemption  from  the  inter- 
ference  of  strangers,  which  at  home  he  enjoys,  and 
becomes,  to  a  limited  extent,  an  outlaw  in  the  com- 
munity, j  As  such,  he  may  be  arrested  and  im- 
pnsonedoy  any  one,  even  on  the  Sabbath  day,  just 

a  criminal  caught  flagrante  delicto.1 

§  121.  Any  person  harboring  or  concealing  him, 
or  aiding  or  abetting  him  in  making  his  escape,  is 
not  only  liable  to  the  master  civilly,2  but,  in  all  the 
States,  is  made  responsible  criminally. 

Any  person  hiring  or  employing  a  runaway  slave, 
is  responsible  to  the  master  for  his  services ;  and  this 
is  true  with  or  without  notice  to  the  employer,  of 
the  fact  of  his  being  a  fugitive,  the  rule  in  such  cases 
being  analogous  to  that  adopted  in  reference  to  mas- 
ters and  apprentices.3  And  although  the  master  is 

1  Abrahams  v.  The  Commonwealth,  1  Robinson's  Virginia  Rep. 
675 ;  Commonwealth  v.  Griffith,  2  Pick.  12 ;  Johnson  v.  Tomp- 
kins  et  al.  1  Baldw.  C.  C.  571 ;  Jarrett  v.  Higbee,  5  Monroe,  552. 

2  Trongott  v.  Byers,  5  Cowen,  480.     Such  was  also  the  Roman 
law,  Smith's  Diet.  "  Servus ;"  see  also  The  Laws  of  King  Ina,  §§  '24, 
29  j  Ancient  Laws  and  Institutes,  pp.  51,  52. 

3  Trongott  v.  Byers,  5  Cowen,  480 ;  James  v.  Le  Roy  et  al.  6 


PERSONAL    LIBERTY.  Ill 

bound  to  furnish  necessary  food  and  clothing  to  his 
slave,  yet  the  wrongdoer,  in  such  a  case,  could  not 
set-off  against  the  master's  claim,  advances  made  to 
the  slave,  however  necessary  they  were.1 

§  122.  The  master  may  recapture  his  slave  at 
any  time  or  place,  whether  in  a  slaveholding  or  non- 
slaveholding  State ;  and  in  order  to  do  so,  he  may 
enter  upon  the  premises  of  another  without  being 
guilty  of  a  trespass,  provided  he  does  so  peaceably, 
and  without  committing  any  breach  of  the  peace.2 
Such  was  the  rule  in  reference  to  a  master  and  his 
apprentice  at  common  law ;  and  an  advertisement, 
by  the  master,  in  a  public  newspaper,  of  his  run- 
away apprentice,  has  been  held  sufficient  authority 
to  justify  a  third  person  in  entering  upon  the  pre- 
mises of  another  to  arrest  the  apprentice.3  Such  was 
the  rule,  also,  in  reference  to  the  lord  and  his  villain, 
provided  the  recapture  was  within  a  year  and  a  day; 
and  this  privilege  extended  to  any  portion  of  the 
realm  to  which  the  villain  may  have  escaped.  Thus 
Fleta :  "  Servus  fugitivus  non  solum  infra  annum  et 
diem  capi  poterit  in  feodo  domini,  sed  ubicunque  in- 
ventus  fuerit  in  regno,  dum  tamen  recenter  post 

John.  273.  So  also  the  law  of  King  Aethelstan,  "Et  qui  alterius 
hominem  suscipiet  intra  marcam  vel  extra,  quern  pro  malo  suo 
dimittat  et  castigare  non  possit;  reddat  regi  centum  viginti  solidos, 
et  redeat  intus  unde  exivit,  et  rectum  faciat  ei  sui  servi  ut  antea." 
Ancient  Law,  &c.  92. 

1  Trongott  v.  Byers,  5  Cowen,  480. 

2  Johnson  v.  Tompkins  et  al.  Bald.  C.  C.  R.  581 ;  Collomb  v. 
Taylor,  9  Humph.  689;  Bogard  v.  Jones,  Ibid.  739;  Prigg  v. 
The  Commonwealth  of  Pennsylvania,  16  Peters,  541. 

3  State  v.  Kerr  et  al.  Addison's  Pa.  Rep.  325 ;  cited  with  ap- 
probation by  Justice    Baldwin,  in  Johnson  v.  Tompkins  et   al. 
Baldw.  C.  C.  R.  581. 


112  LAW  OF  NEGRO   SLAVERY. 

fugam  sequatur,  comprehend!  poterit,  etiam  impune 
retineri."1  Fugitive  villains,  upon  recaption,  were 
branded  in  the  forehead.2 

§  123.  According  to  the  Roman  law,  the  master's 
rights  over  his  slaves  were  in  no  wise  affected  by 
his  running  away.3  A  class  of  persons  called  Fugi- 
tivarii  made  it  their  business  to  recover  runaway 
slaves.  The  master's  right  of  recaption  extended 
everywhere  in  the  realm,  and  it  was  the  duty  of  all 
authorities  to  give  him  aid  in  recovering  the  slave. 
The  fugitive  slave  when  captured  was  branded  in 
the  forehead."  Such  cruel  punishment  was  sometimes 
added,  that  Ulpian  relates  an  instance  of  one  who 
killed  himself  for  fear  of  returning  to  his  master.5 
No  length  of  time  nor  acquisition  of  honors  debarred 
the  master's  right  of  recovery.6  It  was  otherwise, 
however,  if  another  possessed  him  as  a  slave.7  An 
action  was  given  to  the  master  against  any  one  who 
persuaded  the  slave  to  fly  to  a  statue  for  refuge.8 

§  124.  Fugitive  slaves  were  the  subject  of  recapture 
in  the  French  Empire  during  the  middle  ages.  And 
the  Emperor  Charlemagne  is  applauded  for  providing, 
that  if  a  lord  claimed  his  villain  or  slave  (colonus 

1  Fleta,  Lib.  IV,  cap.  xi,  §  23. 

3  Mahoney,  see  4  Harr.  &  McC.  295. 

3  Digest,  II,  tit.  iv,  De  Fugitivis. 

4  Smith's  Diet.  "  Servus,"  p.  1038. 

5  Referred  to  by  Heinec.  De  Reliq.  &c.  Exer.  xviii,  §  32,  Op. 
torn,  ii,  688. 

6  The  reason  is  curious,  "  Qui  in  juste  aufugit,  seque  alicubi  pro 
libero  gerit,  sui  ipsius  fur  habetur,  nee  unquam  ideo  libertatem 
adquirit,"  &c.     Heinec.  De  Prescrip.  &c.  Exer.  xxvi,  §  10 ;  see 
also  Code,  Lib.  XI,  tit.  xlvii.  7  Ibid. 

8  Heinec.  Elem.  Jur.  Pand.  Pt.  VII,  Lib.  XLVII,  §  128. 


PERSONAL   LIBERTY.  113 

sice  servus),  who  had  escaped  beyond  his  territory, 
he  was  not  to  be  given  up  until  strict  inquiry  was 
made  as  to  the  truth  of  the  claim.1 

§  125.  In  all  the  German  states  fugitive  slaves 
were  the  subjects  of  recapture.  And  no  length  of 
prescription  could  bar  the  master's  claim.  Thirty 
years'  possession  by  another  master  was  subsequently 
declared  a  bar.  Among  the  Lombards,  thirty  years' 
enjoyment  of  freedom  prescribed  the  master's  claim.3 
The  law  of  the  Visigoths  enacted  severe  penalties 
against  those  who  concealed  a  slave,  refused  to  de- 
liver him  to  a  judge,  released  him  from  his  chains, 
aided  him  in  his  flight,  or  gave  him  a  refuge.  It 
also  prescribed  the  condition  of  his  wife,  who  mar- 
ried him  supposing  him  to  be  free,  and  also  of  the 
children  born  of  such  a  marriage.  In  some  cases, 
stripes  were  provided  as  the  punishment.3  Most  of 
the  German  states  made  provision  by  law  for  the 
delivery  of  the  fugitives  from  other  states.4  If  the 
delivery  of  the  fugitive  slave  was  refused,  a  war 
frequently  ensued.5  To  avoid  these  controversies, 
the  emperors  at  different  times  prescribed  a  certain 
length  of  time  to  peaceable  residence,  after  which 
the  master's  rights  were  barred.8  Some  of  the  em- 

1  Hallam's  Mid.  Ages,  Vol.  I,  Pt.  II,  ch.  ii,  p.  89,  n. 

2  Heinec.  De  Praescrip.  &c.  Exer.  xxvi,  §11;  Opera,  torn,  ii,  p. 
895. 

3  Heinec.  Elem.  Jur.  Germ.  Lib.  II,  tit.  xxix,  §  355. 

4  Ibid. 

5  Heinec.  De  Praescr.  &c.   Exer.  xxvi,  §  12,  citing  Lehmann, 
Chron.  Spir.  Lib.  VII,  cap.  Ixxi;  Hertius,  De  Horn.  Prop.  Sect. 
iii,  §  10.     See  also  Potg.  Lib.  II,  cap.  ix,  §  20. 

8  Potg.  Lib.  II,  cap.  ix,  §  20. 
8 


114  LAW  OF   NEGRO   SLAVERY. 

perors  refused  to  receive  fugitives  within  their 
states  to  the  prejudice  of  their  masters.1 

§  126.  The  right  of  recapture  existed  in  ancient 
Greece,  and  branding  was  a  common  punishment 
for  a  runaway  slaves 

In  the  West  Indies,  the  punishment  of  a  fugitive 
was  very  severe.  By  the  "  Code  Noir"  he  was 
branded  and  his  ears  cut  off,  for  the  first  and  second 
offences,  and  for  the  third,  he  lost  his  life.  In  the 
Spanish  colonies  he  was  hung,  if  absent  longer  than 
six  months.3  Up  to  the  year  1819,  a  fugitive  slave 
who  had  been  absent  for  thirty  days,  was  hung  in 
the  English  colony  of  Barbadoes.4 

§  127.  The  Church,  since  the  apostolic  day,  has 
ever  followed  the  example  of  Paul  in  restoring  to  his 
master  the  fugitive  Onesimus,  and  in  which  Paul 
only  pursued  the  teaching  of  the  Spirit  of  the  Lord, 
that  instructed  Hagar  in  the  wilderness  to  return 
and  submit  herself  to  the  hand  of  her  mistress. 
Saint  Basil  gave  full  instructions  on  the  subject  of 
fugitive  slaves,  requiring  all  the  inferior  clergy, 
where  refuge  was  sought  in  the  convents  or  other 
sacred  places,  after  having  enlightened  and  made 

1  Potgiesser  gives  the  decrees  of  Frederick  II,  Henry  VI,  Ru- 
dolphus  I,  Ludovicus  IV,  Lib.  II,  cap.  ix,  §  21. 

2  Becker's  Charicles,  279. 

8  Code  Noir.  Schoelcher,  Colonies  Franchises,  p.  102.  The 
severity  of  these  provisions  accounts  for  the  great  number  of  fugi- 
tives, who,  under  the  name  of  Maroons,  infested  their  mountains. 
Napoleon  the  Great  decreed  the  sale  of  any  free  black,  and  his 
family,  if  he  was  detected  harboring  a  fugitive  slave.  Schoelcher, 
103. 

4  Substance  of  the  three  Reports  of  Commissioners  on  the  Law 
of  the  "West  Indies,  p.  13. 


PERSONAL   LIBERTY.  115 

them  better,  to  restore  them  to  their  masters.1  So, 
by  the  decrees  of  several  councils,  any  person  ad- 
vising a  slave  to  abandon  the  service  of  his  master, 
or  advising  him  not  to  serve  with  good  faith  and  the 
most  profound  respect,  was  subject  to  the  anathema 
of  the  Church.2 

1  S.  Basil.  Kegul.  fus.  Tractat.  Int.  xi;  translated  in  Cassagnac's 
Voyage  aux  Antilles,  tom.  ii,  416. 

8  Cassagnac's  Voyage  aux  Antilles,  torn,  ii,  440 ;  Bishop  Eng- 
land's Letters  to  Forsytb. 


CHAPTER  VII. 

SLAVES    ESCAPING   OR   CARRIED   INTO    OTHER    STATES — 
PERSONAL   STATUTES,   AS   APPLIED   TO   SLAVES. 

§  128.  THE  fugitive  slave  may  escape  beyond  the 
limits  of  the  State  of  the  master's  residence.  If  the 
place  of  his  refuge  is  a  slaveholding  State,  there  is 
no  doubt  that  his  condition  of  slavery  is  not  thereby 
affected,  and  that  by  the  comity  of  nations,  he  would 
be  delivered  up  upon  the  requisition  of  the  master. 

A  more  difficult  and  vexed  question  arises  when 
the  place  of  his  refuge  is  a  State  where  slavery 
does  not  exist.  A  conflict  of  laws  then  exists,  the 
proper  solution  of  which  staggered  the  judgment  of 
Lord  Mansfield,1  has  placed  in  such  direct  anta- 
gonism the  opinions  of  the  ablest  of  foreign  jurists, 
that  Judge  Story  was  forced  to  exclaim,  "  Non  nos- 
trum inter  vos  tantas  componere  lites,"2  has  engaged 
for  more  than  half  a  century  the  judicial  mind  of 
America;  and  even  while  I  write  is  mooted  and 
argued  as  an  unsettled  question  in  the  courts  of 
more  than  one  of  the  non-slaveholding  States. 

§  128  a.  Such  a  question  I  approach  with  diffidence, 
and  ask  only  the  judgment  of  honesty  and  candor, 

1  Somersett  Case,  20  Howell's  State  Trials,  21. 
3  Story's  Conflict  of  Laws,  §  58,  et  seq. 


SLAVES   ESCAPING   INTO    OTHER    STATES.  117 

for  the  conclusions  to  which  I  may  arrive.  In  con- 
sidering it,  I  shall  not  confine  the  investigation  to 
fugitives,  but  shall  inquire  also  how  far  the  condi- 
tion of  the  slave  is  changed  by  the  voluntary  re- 
moval of  his  master  into  a  non-slaveholding  State. 
If,  upon  examination,  we  shall  find  that  in  the  latter 
case,  under  any  circumstances,  the  condition  of 
slavery  continues,  a  fortiori  it  will  continue  in  the 
former  where  the  removal  is  invito  domino. 

§  129.  A  preliminary  question  arises  as  to  what 
constitutes  the  domicile  of  a  slave.  We  have  seen 
that,  as  a  general  rule,  it  is  that  of  the  master. 
And  this  not  being  of  choice  of  the  slave,  but  by 
operation  of  law  (necessarium) ,  by  no  act  of  his  can 
it  be  changed.1 

§  130.  That  mere  residence  in  a  country  without 
the  animus  per •manendi,  does  not  effect  a  change  of 
domicile,  so  as  to  subject  the  resident  to  the  personal 
laws  of  the  country,  is  well  settled  by  the  jurists  of 
all  civilized  nations,  as  we  shall  see.  It  is  frequently 
a  question  of  great  nicety  to  determine  what  facts 
will  amount  to  a  change  of  domicile,  and  many  cri- 
teria are  laid  down  to  aid  in  elucidating  this  ques- 
tion.3 It  would  lead  us  too  far  from  our  main  sub- 

1  Phillirnore,  on  the  law  of  Domicile,  25,  60.  So  Menochius, 
in  treating  of  Domicile,  says,  "  Servus  enim  pro  nihilo  habetur 
cum  mortuo  comparetur."  De  Presumptionibus,  Presumptio,  xxx, 
§  19,  p.  1035,  quoted  at  length  in  Appendix  to  Phillimore;  Burge 
Comm.  on  Col.  Law,  &c.  i,  pp.  33,  702,  751 ;  see  also  2  Martin, 
Lin.  Rep.  N.  S.  408;  Anderson  v.  Garrett,  9  Gill.  120. 

8  Phillimore,  on  the  Law  of  Domicile,  pp.  101,  150,  to  which 
the  inquiring  reader  is  referred.  See  also  Mascardus,  De  Proba- 
tionibus,  Conclusio,  dxxxv;  quoted  at  large  in  Appendix  to  Phil- 
limore. 


118  LAW  OF   NEGRO   SLAVERY. 

ject  to  follow  the  many  interesting  questions  arising 
from  this  source,  though  each  of  them  may,  at  some 
time,  in  practice  need  investigation  in  connection 
with  the  subject  now  discussed.  We  must  content 
ourselves,  here,  with  laying  down  the  general  rule, 
that  the  length  of  time  of  the  residence,  and  the 
intention  of  remaining  (to  be  decided  from  all  the 
circumstances,  and  even  against  express  declara- 
tions), are  the  important  criteria  in  most  cases,  and 
that  these  must  coexist  in  order  to  constitute  a  new 
domicile.1  For  the  intention  to  change  a  domicile, 
without  the  actual  removal,  will  not  effect  a  change. 
And,  on  the  other  hand,  many  jurists  hold,  that  no 
length  of  time  of  residence,  without  the  animus  re- 
manendi,  will  effect  a  change  of  domicile.  Thus 
Mascardus  :  Domicilium  non  contrabitur  etiam  per 
mille  annos,  si  quis  habet  animum  recedendi.2  And 
adds,  "  So  I  was  taught  by  the  chief  of  all  inter- 
preters of  the  law,  by  Bartolus."3  Many  of  the 
civilians,  however,  held,  that  residence  for  ten  years 
(decennalis  habitatio)  created  a  legal  presumption  of 
change  of  domicile ;  while  others  again  supposed  it 
to  be  a  matter  within  the  discretion  of  the  judge, 
according  to  the  circumstances  of  the  particular  case.4 
Lord  Stowell  entered  his  protest  against  the  doctrine, 
that  the  mere  fact  that  the  original  residence  was 
for  a  special  purpose,  and  with  the  animus  revertendi, 
should  perpetually  bar  the  presumption  of  a  change 

1  Phillimore,  146,  and  American  authorities  there  cited. 

2  De  Probationibus,  Conclusio,  dxxxv,  Summarium,  12,  vol.  i, 
248.  8  §  xiii,  249. 

4  Phillimore,  141 ;  Pothier,  Coutumes  des  Duche,  Bailliage  et 
Pr§vote  d'Orleans,  ch.  i. 


SLAVES   ESCAPING   INTO    OTHER   STATES.  119 

of  domicile,  and  insisted,  that  "  a  general  residence 
might  grow  on  a  special  purpose."1 

§  131.  There  can  be  no  doubt  that  such  a  pre- 
sumption would  arise,  if  the  residence  were  continued 
after  the  "  special  purpose"  ceased  to  exist.2  And 
we  might  add,  that  a  vague  definite  intention  to 
return  to  one's  country  at  some  future  time,  is  not 
sufficient  to  rebut  the  presumption  of  a  change  of 
domicile.  Thus  Lord  Thurlow  :  "  A  person's  being 
at  a  place,  is  prima  facie  evidence  that  he  is  domi- 
ciled at  that  place,  and  it  lies  on  those  who  say 
otherwise  to  rebut  that  evidence."3  It  may  be  re- 
butted, no  doubt.  A  person  travelling,  on  a  visit, 
he  may  be  there  for  some  time  on  account  of  his 
health  or  business;  the  case  of  soldiers,  ambassa- 
dors, &c.  But  what  will  make  a  man's  domicile  or 
home,  in  contradistinction  to  these  cases,  must  occur 
to  every  one.  A  British  man  settles  as  a  merchant 
abroad ;  he  enjoys  the  privileges  of  the  place ;  he 
may  mean  to  return  when  he  has  made  his  fortune, 
but  if  he  die  in  the  meantime,  will  it  be  maintained 
that  he  had  his  domicile  at  home  ?4  If  the  residence 
be  not  voluntary,  but  by  virtue  of  authority,  such 
as  a  military  officer's,  at  a  post  to  which  he  has  been 

1  2  Robinson's  Adm.  Reports,  pp.  224,  225;  see  also  Stanley  v. 
Bemis,  3  Hagg.  EC.  Rep.  373. 

3  Pothier,  Coutumes  des  Duche,  Bailliage  et  Prevote  d' Orleans, 
ch.  i,  §  1 ;  Phillimore,  on  the  Law  of  Domicile,  148. 

3  This  is  true,  yet  "  animus  mutandi  domicilium  nunquam  pre- 
sumitur,  nisi  probetur."     Mascardus,  De  Probationibus,  vol.  i,  p. 
248.  (Turin.  1591.) 

4  Bruce  v.  Bruce,  reported  in  a  note  to  Marsh  v.  Hutchinson,  2 
Bos.  &  Pul.  219  j  see  also  Elbers  &  Kraffts  v.  The  United  Insur- 
ance Co.  Johnson's  Cases;  Guvier  v.  0' Daniel,  1  Binney,  349. 


120  LAW  OP   NEGRO   SLAVERY. 

ordered  by  his  superior,  then  the  change  of  resi- 
dence does  not  evidence  an  intention  to  change  the 
domicile.1 

§  132.  Another  rule,  perhaps,  deserves  to  be 
noticed,  and  that  is  the  domicile  of  origin  (which  is 
"that  arising  from  a  man's  birth  and  connections")2 
must  prevail,  unless  it  be  proved  that  the  party  has 
acquired  another  by  residence,  and  abandoning  his 
domicile  of  origin.3 

Hence  it  would  follow,  that  a  citizen  of  a  non- 
slaveholding  State  cannot  evade  the  law  by  claiming 
a  domicile  in  a  slaveholding  State,  and  thus  seek  the 
protection  afforded  by  the  comity  of  nations.  Nor 
will  the  mere  removal,  temporarily,  to  a  slavehold- 
ing State,  effect  this;  there  must  be  a  bond  fide 
change  of  domicile ;  an  abandonment  of  the  domicile 
of  origin. 

§  133.  As  the  animus  or  intention  is  a  very  mate- 
rial question  in  determining  the  place  of  domicile,  it 
is  perhaps  well  to  remark,  that  the  oral  declaration 
of  the  party,  as  well  as  his  letters,  are  admissible  in 
evidence,  to  be  weighed  according  to  the  circum- 
stances under  which  they  were  spoken  or  written.4 

1  Opinion  of  Judge  Campbell,  in  the  Dred  Scott  case,  p.  101. 

2  Sommerville  v.  Sommerville,  5  Vesey,  570.    "  Est  autem  ori- 
ginis  locus  in  quo  quis  natus  est,  aut  nasci  debet,  sicut  forte  reipsa 
alibi  natus  esset,  matre  in  peregrinatione  parturiente."     I.  Lv.  t.  i, 
§91. 

8  See  Decisions  of  Lord  Chancellor  Cottenham,  in  Munro  v. 
Munro,  7  Clarke  &  Finnelly;  Keport  of  Cases,  in  the  House  of 
Lords,  842.  See  Phillimore,  p.  101,  where  the  opinions  and  deci- 
sions of  foreign  jurists  and  courts  are  collected. 

4  Phillimore,  on  the  Law  of  Domicile,  112 ;  Munro  v.  Munro, 
7  Clarke  &  Finnelly,  842 ;  Sommerville  v.  Sommerville,  5  Vesey, 


SLAVES  ESCAPING  INTO  OTHER  STATES.      121 

In  general  questions  of  this  kind,  the  intention  is 
ascertained  from  motives,  pursuits ;  on  conditions  of 
the  family  and  fortune  of  the  party.  And  no  change 
will  be  inferred,  unless  evidence  shows  that  one 
domicile  was  abandoned,  and  there  was  an  intention 
to  acquire  another.1 

§  134.  Having  disposed  of  this  preliminary  in- 
quiry, we  resume  our  investigation.  As  a  general 
rule,  the  capacity  or  incapacity  of  persons  is  to  be 
governed  by  the  law  of  the  place  of  their  domicile.2 
Huber  lays  it  down,  as  a  universal  doctrine,  that 
personal  qualities,  impressed  upon  any  person  by  the 
law  of  any  place,  surround  and  accompany  him 
everywhere,  with  this  effect :  that  wherever  he  goes 
he  enjoys,  and  is  subject  to,  the  same  law  that  such 
persons  elsewhere  enjoy  and  are  subject  to.3  All 
foreign  jurists  agree  upon  this  as  a  general  principle, 
though  expressed  differently;  varying,  however, 
widely  among  themselves  as  to  what  are  personal 
and  what  real  statutes.4  Thus  Boullenois :  "Ces 

570.  Such  also  is  the  French  law,  Code  Civil,  t.  iii,  Du  Domicile, 
§  105 ;  and  the  Spanish  law,  Codice  Civile,  t.  iii,  Del  Domicilis, 
§68. 

1  Justice  Campbell,  in  the  Dred  Scott  case,  p.  101,  and  authori- 
ties cited  by  him. 

3  (Euvres  D' Aguesseau,  torn,  v,  p.  256,  257,  8vo.  edition ; 
Pothier,  Int.  Coutumes  D'Orleans,  Int.  ch.  i,  §  7;  D'Argentre", 
Coutume  de  Bretagne,  Art.  218,  Glos.  vi,  n.  5,  et  suiv. 

3  "  Qualitates  personales,  certo  loco,  alicui  jure  impressas,  ubique 
circumferri  et  personam  comitari,  cum  hoc  effectu,  ut  ubique  loco- 
rum  eo  jure,  quo  tales  personse,  alibi  gaudent  vel  subjecti  sunt, 
fruanturet  subjiciantur."  Huberus,  De  Conf.  Leg.  Lib.  I,  tit.  iii, 
§12. 

*  Story's  Conflict  of  Laws,  ch.  iv,  on  Capacity  of  Persons. 
(Euvres  D' Aguesseau,  torn,  v,  256. 


122  LAW  OF   NEGRO   SLAVERY. 

lois  personelles  affectent  la  personne  d'une  qualite 
qui  lui  est  inherente,  et  la  personne  est  telle  par- 
tout."1  So  Rodenburg :  "  Cum  de  statu  ac  condi- 
tione  hominum  queritur,  uni  solummodo  judici  et 
quidem  domicilii,  universum  in  ilia  jus  sit  attribu- 
tum."  "  Whenever  it  becomes  necessary  to  inquire 
into  the  state  or  condition  of  persons,  there  is  but 
one  judge,  viz.,  that  of  his  domicile,  to  whom  the 
whole  question  is  to  be  referred."2  "  Hinc,"  says 
Hertius,  "  status  et  qualitas  personse  regitur  (regun- 
tur)  a  legibus  loci,  cui  ipsa  sese  per  domicilium  sub- 
jecit."3  "  Hence,  the  state  and  quality  of  a  person  are 
governed  by  the  laws  of  that  place  to  which,  by  his 
domicile,  he  subjects  himself."  Froland,  Bouhier, 
Pothier,  Foelix,  Stockmannus,  and  others,  lay  down 
the  same  rule.4 

§  135.  Vinnius  goes  farther,  and  applies  the  rule 
directly  to  the  question  of  slavery,  thus :  "  Status 
est  persons  conditio  aut  qualitas  quas  efficit  ut  hoc 
vel  illo  jure  utatur,  ut  esse  liberum,  esse  servum,  esse 
ingenuum,  esse  libertinum,  esse  alieni,  esse  sui  juris."5 
"The  status  is  that  condition  or  quality  of  a  person, 
which  makes  him  free  or  slave,  noble  or  ignoble, 
capable  or  incapable,  by  whatever  law  he  may  be 
judged." 

1  1  Prin.  Gen.  p.  4.          2  De  Div.  Stat.  tit.  i,  ch.  iii,  §§  4-10. 
8  Hertius,  De  Collis.  Leg.  §  4,  n.  5,  p.  122. 

4  Story's  Conf.  of  Laws,  3d  edit.  §  51  a.     I  cannot  forbear  quoting 
the  language  of  Stockmannus,  for  the  sensible  reason  he  gives  for 
the  rule  :  "  Unde,  recte,  eum  qui  inhabilis  est  in  uno  loco,  etiam  in 
alio  inhabilem  censeri ;  et  si  aliter  statuamus,  incertus  et  varius  erit 
personarum  status;  cum  tamen  uti  personam  ubique  eandem,  ita 
qualitatem  personse  inherentem,  velut  ejus  accidens,  ubique  unifor- 
mem  esse  conveniat."     Decis.  125,  §  6. 

5  Vinnius,  Lib.  I,  De  Jure  Personal!,  tit.  iii,  Introd. 


SLAVES    ESCAPING   INTO    OTHER   STATES.  123 

In  fact,  so  general  is  this  principle,  that  we  find 
it  announced  as  maxims  :  "  Habilis  vel  inhabilis  in 
loco  domicilii  est  habilis  vel  inhabilis  in  omni  loco."1 
"  Capable  or  incapable  in  the  place  of  domicile,  is 
to  be  capable  or  incapable  everywhere."  And  also, 
"Quando  lex  in  personam  dirigitur,  respiciendum 
est  ad  leges  illius  civitatis,  quse  personam  habet  sub- 
jectam."*  "When  the  law  is  directed  to  the  person, 
we  must  look  to  the  laws  of  that  state  of  which  the 
person  is  a  subject."  The  figure  used  by  Potgiesser, 
in  defining  the  meaning  of  status,  is  still  stronger : 
"Omnis  autem  homo,  quicunque  fuerit,  vivit  in 
statu  quodam,  qui  eum,  velut  umbra  corpus  ubique 
comitatur,  et  sine  quo  ut  agens  considerari  nequit."3 
"  Every  man,  whoever  he  may  be,  lives  in  a  certain 
status^  which  accompanies  him  everywhere,  as  the 
shadow  does  the  body,  and  without  which  he  cannot 
be  considered  as  an  actor." 

§  136.  Among  American  writers,  we  find  the 
same  broad  principle  distinctly  acknowledged  and 
laid  down.  Wheaton  says,  "  In  general,  the  laws  of 
the  state  applicable  to  the  civil  condition  and  per- 
sonal capacity  of  its  citizens,  operate  upon  them 
even  when  resident  in  a  foreign  country.  Such  are 
those  universal  personal  qualities,  which  take  effect 

from  birth,  &c The  laws  of  the  state 

affecting  all  these  personal  qualities  of  its  subjects, 
travel  with  them  wherever  they  go,  and  attach  to 
them  in  whatever  country  they  are  resident."1 

1  Boullenois,  Dis.  sur  les  conflits  des  lois,  Ed.  1732,  Disc.  Prel. 
p.  20 ;  Regie,  10. 

a  Hertius,  De  Collis.  Leg.  §  4,  Art.  8,  p.  123,  ed.  1737. 

3  De  Statu  Servorum,  Proleg.  §  11. 

*  Wheaton's  Elements  of  International  Law,  Part  II,  ch.  ii,  §  6, 


124  LAW  OF  NEGRO  SLAVERY. 

Burge,  the  only  English  writer  upon  the  conflict 
of  laws,  agrees  that  this  is  the  general  rule.1 

§  137.  If.  there  is  an  actual  change  of  domicile, 
animo  remanendi,  a  different  principle  applies,  and 
the  better  opinion  undoubtedly  is,  that  the  law  of 
the  new  domicile  governs  as  to  capacity.3  This  is 
a  case  very  materially  different  from  that  of  a  so- 
journer  for  pleasure,  or  on  business ;  and  a  disregard 
to  this  difference  we  conceive,  as  we  shall  hereafter 
show,  has  misled  many  of  the  courts  in  their  de- 
cisions in  reference  to  the  question  under  considera- 
tion. 

§  138.  The  general  principle  that  the  capacity  or 
incapacity  of  a  person  is  governed  by  the  law  of  his 
domicile,  has  been  frequently  recognized  in  the  Eng- 
lish courts.  It  more  frequently  arises  in  reference 
to  questions  connected  with  marriage  and  divorce, 
infancy,  or  legitimacy.  Thus,  in  Beasley  v.  Beasley,3 
the  Court  say,  "  There  is  a  preliminary  considera- 
tion, the  capability  of  the  parties  to  contract  mar- 
riage ;  and  the  true  question  is,  whether  that  capa- 
bility is  to  be  determined  by  the  law  of  Scotland  or 
the  law  of  England.  The  former  would  say,  the 
parties  are  capable ;  the  latter  would  say,  they  are 
incapable.  The  parties  in  this  case  being  domiciled 
in  England,  though  the  marriage  was  consummated 
in  Scotland,  they  were  held  incapable,  and  the  mar- 

p.  132.  He  refers,  as  an  authority,  to  Pardessus,  Droit  Commer- 
ciale,  Pt.  VI,  tit.  7,  ch.  ii,  §  1,  and  to  Foelix,  Droit  International 
Prive,  Lib.  I,  tit.  i,  §  31. 

1  Treatise  on  Col.  and  For.  La'w,  vol.  i,  §  7. 

2  Story's  Conf.  of  Laws,  §§  55,  69,  et  seq.,  and  authorities  cited. 

3  3  Hagg.  639. 


SLAVES    ESCAPING    INTO    OTHER    STATES.  125 

riage  void."  So,  in  the  case  of  Sheddon  v.  Patrick, 
the  law  of  the  State  of  New  York  was  enforced  by 
the  English  courts  in  reference  to  the  legitimacy  of 
a  child  born  before  the  marriage  of  the  parents. 
The  same  decision  was  made  in  the  Strathmore 
Peerage  case.1  In  accordance  with  these  cases  is 
the  declaration  of  Lord  Stowell,  in  Dalrymple  v. 
Dalrymple.2  "  Being  entertained  in  an  English 
court,  it  must  be  adjudicated  according  to  the  prin- 
ciples of  English  law,  applicable  to  such  a  case.  But 
the  only  principle  applicable  by  the  law  of  England 
is,  that  the  validity  of  Miss  G.'s  marriage  rights 
must  be  tried  by  reference  to  the  law  of  the  country 
where,  if  they  exist  at  all,  they  had  their  origin. 
Having  furnished  this  principle,  the  law  of  England 
withdraws  altogether,  and  leaves  the  legal  question  to 
the  exclusive  judgment  of  the  law  of  Scotland."3  With 
equal  clearness  does  Lord  Ellenborough  state  the  rule 
in  Potter  v.  Brown,  when  he  says, "  We  always  import 
together  with  their  persons  the  existing  relations  of 
foreigners  as  between  themselves,  according  to  the 
laws  of  their  respective  countries ;  except,  indeed, 
where  those  laws  clash  with  the  rights  of  our  own 
subjects  here,  and  one  or  other  of  the  laws  must 

1  These  two  last  cases  I  take  from  the  argument  of  counsel,  in 
Doe  v.  Vardill,  5  Barn.  &  Cr.  438 ;  see  also  that  case. 

3  2  Hagg.  Consist.  Rep.  59. 

8  See  also  Birdwhistle  v.  Vardill,  9  Bligh.  45.  In  this  case  the 
Court  refused  to  extend  the  principle  to  the  inheritance  of  realty 
situate  in  England.  It  is  unnecessary  for  our  purposes  to  examine 
the  correctness  of  this  exception  /rom  the  general  rule  j  suffice  it 
to  say,  it  is  at  war  with  the  opinions  of  all  foreign  jurists  on  this 
subject.  See  Story's  Conf.  of  Laws,  §  93,  r. 


126  LAW  OF  NEGRO   SLAVERY. 

necessarily  give  way,  in  which  case  our  own  is  en- 
titled to  the  preference."1 

§  139.  The  same  principle,  that  the  personal  status 
is  to  be  governed  by  the  law  of  the  domicile,  has 
been  frequently  recognized  by  the  courts  of  the 
United  States. 

§  140.  Having  established  the  general  principle 
that  the  status  of  a  person  is  to  be  determined  by 
the  law  of  his  domicile,  it  becomes  us  next  to  in- 
quire whether  the  condition  of  slavery  is  one  of  the 
exceptions  to  the  rule,  or  is  embraced  within  its 
general  operation. 

To  determine  these  questions,  we  must  seek  for 
the  reasons  upon  which  exceptions  to  the  rule  are 
based.  Huber  gives  us  that  reason  as  follows : 
"  Rectores  imperiorum  id  comiter  agunt,  ut  jura 
cujusque  populi,intra  terminos  ejus  exercita,  teneant 
ubique  vim  suam,  quatenus  nihil  potestati  aut  juri 
alterius  imperantis  ej usque  civium  prsejudicetur."3 
"The  rulers  of  nations  observe  this  principle  through 
comity,  that  the  laws  of  each  state,  enforced  within 
its  own  limits,  shall  retain  the  same  force  every- 
where, so  long  as  no  injury  is  done  to  the  power 
or  laws  o.f  the  state  where  they  are  sought  to  be 
enforced." 

§  141.  The  rule  and  the  exceptions  are  here 
given  together.  The  laws  of  a  nation  have  no  extra 
territorial  effect  per  se.  But  the  recognition  and 
enforcement  of  these  laws  in  a  vast  variety  of  cases, 

1  5  East,  131. 

3  Saul  v.  His  Creditors,  17  Martin,  R.  590.  See  a  masterly 
exposition,  by  Lockwood,  J.,  in  Willard  v.  The  People,  4  Scam. 
472.  s  De  Conf.  Leg.  Bk.  I,  tit.  iii. 


SLAVES   ESCAPING   INTO   OTHER   STATES.  127 

have  been  found  to  contribute  so  largely  to  promote 
justice  between  individuals  and  to  produce  a  friendly 
intercourse  between  the  sovereignties  to  which  they 
belong,  that  courts  of  justice  have  continually  acted 
upon  it  as  a  part  of  the  voluntary  law  of  nations.1 

Thus  far  the  comity  of  nations  requires  the  courts 
to  go.  Whenever  the  enforcement  of  the  foreign  law 
is  contrary  to  the  policy  or  prejudicial  to  the  interests 
of  the  state  where  its  recognition  is  invoked,  the 
courts  will "  prefer  the  laws  of  their  own  country  to 
that  of  the  stranger."2  For  example,  if  two  parties 
contract  a  marriage  within  one  jurisdiction,  and  sub- 
sequently remove  to  another  domicile,  the  question 
as  to  the  validity  of  the  marriage,  as  a  general  rule, 
will  be  determined  by  the  law  of  the  domicile  at 
the  time  of  the  marriage.  But  if  the  marriage, 
according  to  the  law  of  their  new  domicile,  were  in- 
cestuous, or  if  the  husband  sought  to  retain  more 
than  one  wife,  because  polygamy  was  allowed  by  the 
law  of  his  former  domicile,  incest  and  polygamy 
being  contrary  to  the  policy  of  the  law  of  his  new 
domicile,  that  law  would  be  enforced  by  the  courts.3 

§  142.  Having  arrived  at  the  reason  of  the  excep- 
tion, the  question  recurs,  how  far  would  the  recog- 
nition of  slavery  interfere  with  the  policy"  or  be  pre- 
judicial to  the  interest  of  a  non-slaveholding  nation? 
This  question  we  will  first  examine  upon  principle, 
and  then  upon  authority. 

1  See  remarks  of  Taney,  C.  J.,  in  Bank  of  Augusta  v.  Earle,  13 
Peters,  589. 

3  Per  Porter,  J.,  in  Saul  v.  His  Creditors,  17  Mart.  596 ;  Story's 
Conf.  of  Laws,  §  32. 

3  Story's  Conf.  of  Laws,  §§  113,  113  a  (3d  Ed.). 


128  LAW  OF  NEGRO   SLAVERY. 

If  the  residence  of  the  slave  in  the  new  domicile 
was  animo  remanendi,  there  can  be  no  doubt  that  to 
continue  his  status  as  a  slave,  would  be  to  introduce 
a  new  system  of  servitude,  violative  of  the  policy  of 
the  laws  of  his  domicile,  where  such  a  system  is  not 
recognized,  but  may  possibly  have  been  abolished  by 
law.  No  nation  could  require  of  another,  through 
comity,  to  change  its  social  system,  or  to  establish 
within  its  bounds  an  institution  contrary  to  the 
policy  of  its  laws.  The  conclusion  is  manifest,  that 
a  master  removing  to  a  non-slaveholding  State,  with 
a  view  to  a  change  of  domicile,  and  carrying  with 
him  his  slaves,  would  thereby  emancipate  them. 

§  143.  On  the  other  hand,  if  a  citizen  of  a  slave- 
holding  State,  removing  to  another  where  slavery 
was  established,  should  be  compelled  by  necessity  or 
misfortune  to  pass  through  the  territory  of  a  non- 
slaveholding  State  with  his  slaves,  it  is  equally  clear, 
upon  the  principles  before  stated,  that  the  status  of 
the  slave  is  not  changed;  and  the  declaration,  by 
the  courts  of  such  a  State,  that  this  transit  contra- 
vened the  policy  of  their  laws,  or  was  prejudicial  to 
the  interests  of  their  government,  would  be  viewed 
by  all  candid  minds  as  a  mere  pretence  and  evasion. 
I  shall,  hereafter,  consider  how  far  the  government 
of  such  State  might  go  in  prohibiting  such  transit, 
without  violating  the  law  of  nations.  I  am  con- 
sidering the  question  now  in  the  absence  of  such 
express  prohibition. 

§  144.  I  am  aware  that  to  this  position  it  may  be 
replied,  in  the  words  of  Lord  Mansfield,  that  "Slavery 
is  so  odious,  that  it  can  exist  only  by  positive  law  ;"1 

1  See  Commentary  of  Lord  Stowell  on  this  remark  of  Lord 
Mansfield,  in  2  Hagg.  Adm.  Rep. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      129 

and  that,  so  soon  as  the  slave  is  removed  beyond 
the  limits  of  the  slaveholding  State,  he  is  beyond 
the  influence  of  the  positive  law.  But  mark  !  ad- 
mitting that  it  exists  by  positive  law,  the  conclusion 
is  in  direct  violation  of  the  principle  we  have  esta- 
blished, that  the  courts  of  every  nation  will  enforce 
"  the  positive  law"  of  every  other  nation,1  except 
where  it  contravenes  its  own  policy.  Does  it  con- 
travene that  policy  ? 

§  145.  "  Slavery,"  it  is  said,  "is  a  state  of  despot- 
ism, and  it  is  contrary  to  the  policy  of  a  free  govern- 
ment to  recognize  despotism  in  any  shape."  Is  this 
a  true  proposition  ?  The  government  of  Great  Bri- 
tain is  a  free  government ;  that  of  Kussia  is  despo- 
tic. The  Czar  of  Kussia  visits  Westminster  with 
his  court.  Is  their  allegiance  instanter  dissolved  ? 
Stripped  of  his  power,  would  the  Czar  stand  before 
a  British  court  with  no  other  power  over  his  suite 
but  that  of  a  British  citizen  ?  I  am  aware  that  it 
may  be  replied,  that  the  intercourse  of  courts  and 
the  comity  of  nations  have  established  certain  prin- 
ciples governing  the  rights  and  privileges  of  sove- 
reigns, and  even  of  their  ambassadors.  Yet  that 
comity  which  will  recognize  the  rights  of  the  sove- 
reign is  too  weak  to  enforce  the  rights  of  the  citizen. 

§  146.  But  let  us  sift  the  proposition.  "  Slavery 
is  despotism."  For  the  sake  of  the  argument, 
granted.  "  It  is  contrary  to  the  policy  of  a  free 

1  Equally  unfounded  is  the  remark  in  Forbes  v.  Cochran,  2  Barn. 
&  Cress.  448,  that  "  the  reason  why  a  foreign  slave  is  free  in  Eng- 
land, is  because  there  is  no  law  to  restrain  him."  There  is  a  law 
to  restrain  him, — the  law  of  his  domicile,  enforced  by  the  English 
courts,  ex  comitate. 


130  LAW   OF   NEGRO    SLAVERY. 

government  to  recognize  despotism  in  any  shape." 
By  the  policy  of  a  government,  we  are  to  under- 
stand that  uniform  and  fundamental  principle  which 
is  evidenced  by  the  general  tenor  of  its  acts.  The 
policy  of  a  free  government  then,  would  be  to  secure 
liberty  and  the  blessings  of  liberty  to  all  who  owe  it 
allegiance.  A  Quixotic  crusade  against  the  institu- 
tions of  other  governments  has  never  been  acknow- 
ledged as  being  embraced  within  that  policy.  The 
transit  of  the  master  with  his  slave,  in  the  case  sup- 
posed, interferes  not  with  the  liberty  of  any  citizen, 
nor  the  fruition  of  that  liberty.  It  does  not  bring 
the  labor  of  the  slave  in  competition  with  free  labor. 
In  no  possible  light  can  it  be  seen,  that  the  rights,  or 
interests,  or  liberties,  of  the  citizen,  are  thereby  im- 
paired. And  hence  the  inevitable  conclusion,  that 
the  policy  of  the  government  is  not  contravened. 

§  147.  We  must  be  careful  to  distinguish  between 
the  phrases,  "  contrary  to  the  law  of  a  government," 
and  "  contrary  to  the  policy  of  a  government,"  as 
many  things  may  be  contrary  or  different  from  the 
law  of  a  government,  which  at  the  same  time  may 
not  be  contrary  to  its  policy.  Thus,  a  marriage  by 
the  civil  law  legitimates  antenuptial  children.  Aliter 
by  the  common  law.  Yet  the  courts  of  all  countries 
where  the  common  law  is  adopted,  recognize  the 
legitimacy  of  such  children,  when  such  is  the  law  of 
the  domicile  of  the  parents  at  the  time  of  the  mar- 
riage. 

Hence,  the  fact  that  slavery  is  not  recognized,  or 
is  actually  abolished  by  the  laws  of  a  State,  does  not 
of  itself  make  it  "contrary  to  the  policy  of  the 
State,"  under  any  circumstances,  to  recognize  sla- 


SLAVES    ESCAPING   INTO   OTHER   STATES.  181 

very.  Another  step  is  necessary.  Some  detriment 
to  the  rights,  interests,  liberties,  or  morals,  of  the 
people,  or  to  the  laws  of  the  State,  must  be  shown, 
to  constitute  the  right  sought  to  be  enforced  "con- 
trary to  the  policy  of  the  State." 

§  148.  We  must  be  careful,  also,  to  distinguish 
between  the  recognition  of  a  right  which  is  sought 
to  be  permanently  enjoyed  within  the  limits  of  a 
nation,  and  of  a  right,  the  temporary  enforcement 
of  which  is  sought,  ex  comito-te,  to  secure  its  ulterior 
enjoyment  elsewhere.  The  former  may  be  against 
the  policy  of  a  nation,  while  the  latter  is  not.  Thus 
polygamy  being,  in  Christian  nations,  deemed  contra 
bonos  mores,  is  prohibited  by  the  civil  and  criminal 
codes  of  all  such  nations.  Were  a  Turk  with  his 
harem,  therefore,  to  seek,  in  a  Christian  nation,  per- 
manently to  reside,  he  would  be  forced  to  abandon 
his  plurality  of  wives.  The  right  he  seeks  would 
be  detrimental  to  the  morals  of  the  people,  and  con- 
trary to  the  law  of  his  new  domicile.  But  if,  in 
passing  from  his  own  to  some  other  nation  where 
polygamy  is  allowed,  by  stress  of  weather  or  other 
cause,  he  should  be  forced  to  enter  within  a  Chris- 
tian port,  or  to  pass  over  the  territory  of  a  Christian 
nation,  could  it  be  supposed  that  he  thereby  sub- 
jected himself  to  a  criminal  prosecution  for  bigamy; 
or  that  his  wives  were  relieved  from  the  obligations 
of  the  marriage  tie  the  instant  their  feet  trod  the 
soil  of  a  Christian  nation  ? 

§  149.  In  thus  noticing  the  objections  that  might 
be  raised  to  the  truth  of  the  proposition,  that  the 
mere  transit  of  the  slave  through  the  territory  of  a 
non-slaveholding  State,  does  not  emancipate  him,  I 
have  not  pretended  to  reply  to  the  declaration  (it 


132  LAW  OF  NEGRO   SLAVERY. 

does  not  deserve  the  name  of  argument  where  prin- 
ciples are  discussed),  that  "the  air  of  a  free  state 
is  too  pure  for  a  slave  to  breathe."1  I  am  aware 
that  this  fashionable  piece  of  eloquence  originated 
in  France  as  early  as  1738,  when  one  of  the  counsel, 
in  his  zeal,  announced  among  other  things,  "  La 
France,  mere  de  laliberte,  nepermet  aucunsesclaves," 
and  "  II  n'y  a  en  France  aucuns  esclaves,  et  la  cou- 
tume  y  est  telle  que,  non  seulement  les  FranQais, 
mais  aussi  les  etrangers,  prenant  port  en  France,  et 
criant  France  et  Liberte,  sont  hors  de  la  puissance 
de  celui  qui  les  possedait."2  I  am  aware  that  Eng- 
lish lawyers  of  high  fame  have  been  willing  to 
reiterate  the  declaration  in  the  presence  of  excited 
multitudes,  and  perhaps  in  the  hearing  of  an  inti- 
midated court ;  that  even  judges  have  been  found 
who  were  willing  gravely  to  announce,  as  a  princi- 
ple, the  outburst  of  Parisian  enthusiasm. 

§  150.  I  am  also  aware  that,  at  the  time  the  sen- 
timent was  announced  in  France,  and  until  the  time 
of  the  great  Revolution,  there  were  in  that  nation 
serfs  or  "  mainmortes,  whose  condition,  if  it  were 
not  strictly  speaking  slavery,  undoubtedly  bore  a 
very  strong  resemblance  to  that  status"3  That  at 

1  It  is  a  little  curious,  that  so  much  influence  should  be  given  to 
the  air.  Heineccius  informs  us,  that  the  air  of  some  countries, 
ipso  facto,  makes  some  persons  slaves.  Speaking  of  the  various 
sources  of  slavery,  he  says,  "  Per  commorationem  in  illis  locis,  ubi 
aer  dicitur  servos  facere."  Elem.  Jur.  de  Pand.  Lib.  I,  §  138. 

3  13  Causes  celebres.     Argument  of  M.  Le  Clerc,  p.  549. 

3  20  Howell's  State  Trials, -1369;  see  also  Encyclopedia,  tit. 
Mainmorte.  M.  Favre,  Cod.  Lib.  VII,  tit.  iii,  def.  3,  says  of  the 
mainmortes  of  France,  "Negari  non  potest,  quin  servis  proxime 
accedant,  illamque  naturalem  libertatem,  quae  hominibus  omnibus 


SLAVES  ESCAPING  INTO  OTHER  STATES.      133 

the  time  it  was  caught  up  in  England,  and  pro- 
claimed as  a  principle,  "  the  laws  of  England  had 
not  rejected  servitude."  Villanage  was  worn  out, 
but  the  law  of  villanage  was  unrepealed  upon  the 
statute-book.'  That  at  that  moment  thousands  of 
West  Indian  slaves  were  owned  by  residents  in 
England.  That  at  the  very  time  that  paeans  of 
triumph  were  being  sung  over  the  abolition  of 
slavery  in  the  West  Indies,  a  larger  body  of  slaves 
were  under  British  rule  and  governed  by  British 
law  in  the  East  Indies.2  That  the  slave-trade  was 
carried  on  to  furnish  her  with  slaves,  and  that  such 

communis  est,  valde  imniunitam  habeant."  President  Bouhier 
quotes  this  opinion  with  approbation.  Observ.  sur  la  Gout,  du 
Duche  de  Bourgogne,  ch.  Ixiv,  §  3.  He  says,  "  On  nous  donne 
en  effet  pour  axiome  de  notre  Droit  Frangais  que  toutes  personnes 
sont  franches  en  ce  Royaume ;  et  que  sitot  qu'un  esclave  a  atteint 
les  marches  d'icelui,  se  faisant  baptiser,  il  est  affranchi.  Mais  il 
est  certain  que  cela  doit  seulement  etre  entendu  du  droit  dont  nous 
usons  depuis  quelques  siecles.  Car  tout  le  monde  convient,  que 
non  seulement  sous  les  deux  premieres  races  de  nos  Rois,  mais 
nicme  sous  les  premiers  de  la  troisieme,  on  ne  connoissoit  point  cette 
espece  d'affranchisements  dont  je  viens  de  parlerj  en  sorte  qu'il 
etoit  permis  d'avoir  des  esclaves  autant  qu'on  en  vouloit,  ou  qu'on 
pouvoit  avoir."  Obser.  ch.  Ixiv,  p.  420.  Again,  speaking  of  main- 
mortes  personnels,  he  says,  "  Ce  qui  fait  voir  1'erreur  de  ceux  qui  ont 
pretendu  qu'il  n'y  avoit  point  de  servitude  personelle  en  notre  pro- 
vince." Ibid.  The  children  of  mainmortes  followed  the  condition  of 
the  father.  Ibid.  Because  the  wife,  according  to  the  custom  of  Bur- 
gundy, follows  the  condition  of  the  husband.  Ibid.  ch.  Ixvi,  §  56. 
Even  if  she  is  a  noble.  Ibid.  §  74. 

1  20  Howell's  State  Trials,  74.  Argument  of  Mr.  Dummig. 
Lord  Mansfield  himself,  thirteen  years  later,  declared  that  "villains 
in  gross,  may,  in  point  of  law,  subsist  at  this  day"  (1785).  4 
Douglas,  302.'  (26  E.  C.  L.  R.  369.) 

3  Slavery  in  India,  by  W.  Adam,  626. 


134  LAW  OF   NEGRO   SLAVERY. 

slavery  continues  and  is  authorized  by  British  law 
to  this  day.1  That  long  after  Groenewegen  had 
written,  that  in  Holland,  "ej  usque  nomen  (servitus) 
apud  nos  exolevit,"  there  was  in  that  country  invo- 
luntary servitude  for  life,  and  death  the  penalty  for 
non-performance  ;2  and  that  when  the  same  senti- 
ment was  applauded  in  the  courts  of  Scotland,  an 
hereditary  servitude  for  life,  and  with  few  if  any 
privileges  above  slavery,  existed,  and  continued  long 
after  to  exist,  in  the  salt-works  and  collieries  of  that 
country.3  The  sentiment  was  pleasant  to  speak  and 
gratifying  doubtless  to  hear,  and  would  be  very  ap- 
propriate in  a  popular  harangue,  on  the  festival  of 
the  anniversary  of  some  day  sacred  to  liberty.  But 
it  weighs  nothing  in  a  court  where  questions  of  law 
are  decided  according  to  the  principles  of  law. 

§  151.  In  support  of  the  proposition  we  have  ad- 
vanced, that  the  bare  transit  of  a  slave  through  the 
territory  of  a  non-slaveholding  State,  does  not  change 
his  status  of  slavery,  another  principle  of  the  law  of 
nations  might  be  invoked,  viz.,  that  strangers  have 
a  right  to  pass  with  their  property  through  the  ter- 
ritories of  a  friendly  nation.4  And  the  question  of 
what  is  "  property,"  is  to  be  decided  by  the  laws  of 
the  domicile  of  the  owner.5 

§  152.  Two  positions  upon  principle  we  consider 
as  established.  First.  Upon  a  change  of  domicile 

1  Slavery  in  India,  by  W.  Adam,  31, 129,  218.         2  Ibid.  p.  75. 

3  20  St&te  Trials,  7,  note ;  see  also  Barrington's  Observations  on 
Anct.  Stat.  1  Rich.  2,  note.  • 

*  Vattel,  Law  of  Nations,  Bk.  II,  ch.  ix,  §§  123-186 ;  Puffen- 
dorf,  Bk.  Ill,  ch.  iii,  §§  5-10. 

5  Vattel,  Bk.  II,  ch.  viii,  §  81. 


SLAVES   ESCAPING   INTO    OTHER   STATES.  135 

from  a  slaveholding  to  a  non-slaveholding  State, 
animo  remanendi,  the  status  of  the  slave  is  changed, 
and  he  becomes  free.  Second.  The  mere  transit  of  a 
slave,  either  from  necessity  or  convenience,  through 
the  territory  of  a  non-slaveholding  State,  does  not 
change  his  status  or  condition  of  slavery.  Between 
these  extremes  there  are  many  intermediate  points. 
The  temporary  residence  for  business  or  pleasure  of 
a  master  with  his  slave,  the  sojourning  for  a  season 
for  health,  or  the  constant  travelling  in  search  of 
novelty  and  pleasure,  in  short,  the  many  varied  cir- 
cumstances, differing,  and  distinguishing  each  case  as 
it  arises.  On  the  one  hand,  the  mere  announcement 
by  the  master  of  an  intention  to  return  to  his  domi- 
cile, at  some  future  and  uncertain  period,  should  not 
operate  so  as  to  introduce,  by  such  an  evasion  of  the 
law,  into  a  State  an  institution  repugnant  to  its 
laws.  On  the  other,  a  mere  detention  for  a  limited 
season  of  a  master,  by  business  or  pleasure,  could  not 
operate  so  as  to  change  the  status  of  his  slave,  when 
he  thereby  in  no  way  contravenes  the  policy  of  the 
local  law. 

§  153.  Where  then  is  the  line  to  be  drawn  ?  So 
long  as  the  residence  of  the  master  and  his  slave  is 
bond  fide  for  a  temporary  purpose,  it  would  seem  the 
comity  of  nations  would  protect  the  master's  right. 
Whenever  this  privilege  of  temporary  residence  is 
used  to  evade  the  law  (as  at  the  time  of  the  trial  of 
Somerset's  case,  when  there  were  in  the  British 
Isles  1^,000  slaves),  it  would  be  the  duty  of  the 
courts  to  refuse  to  extend  *the  principle  of  comity. 
In  fact,  upon  all  questions  of  this  character,  much 
necessarily  has  to  be  left  to  the  discretion  of  the 


136  LAW  OF  NEGRO   SLAVERY. 

courts.  In  his  Conflict  of  Laws,  Judge  Story  says, 
"  Upon  the  continent  of  Europe  some  of  the  prin- 
cipal states  have  silently  suffered  their  courts  to 
draw  this  portion  of  their  jurisprudence  (viz.,  ques- 
tions arising  under  the  comity  of  nations),  from  the 
analogies  furnished  by  the  civil  law,  or  by  their  own 
customary  or  positive  code.  France,  for  instance, 
composed  as  it  formerly  was  of  a  great  number  of 
provinces,  governed  by  different  laws  and  customs, 
was  early  obliged  to  sanction  such  exertion  of  autho- 
rity by  its  courts,  in  order  to  provide  for  the  con- 
stantly occurring  claims  of  its  own  subjects,  living 
and  owning  property  in  different  provinces,  in  a  con- 
flict between  the  different  provincial  laws.  In  Eng- 
land and  America,  the  courts  of  justice  have  hitherto 
exercised  the  same  authority  in  the  most  ample 
manner ;  and  the  legislatures  have  in  no  instance  (it 
is  believed)  interfered  to  provide  any  positive  regu- 
lations. The  common  law  of  both  countries  has 
been  expanded  to  meet  the  exigencies  of  the  times, 
as  they  have  arisen,  and  so  far  as  the  practice  of 
nations  or  the  jus  gentium  privatum  has  been  sup- 
posed to  furnish  any  general  principle,  it  has  been 
followed  out  with  a  wise  and  manly  liberality."1 

§  154.  Upon  this  examination  of  the  principles 
upon  which  the  comity  of  nations  enforces,  in  every 
state,  the  laws  of  other  and  foreign  governments, 
we  arrive  at  three  conclusions : 

1.  That  where  there  is  a  change  of  domicile,  from 
a  slaveholding  to  a  non-slaveholding  nation,  the 
animus  remanendi  works  of  itself  and  instanter 

1  Conflict  of  Laws,  §  24. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      137 

(simul  ac  imperil  fines  intrarunt)  the  emancipation 
of  the  slave. 

2.  That  the  mere  transit  of  the  master  with  his 
slave,  either  from  necessity  or  convenience,  through 
the  territory  of  a  non-slaveholding  state,  does  not 
change  the  status  of  the  slave. 

3.  That,  as  a  general  rule,  where  there  is  a  bond 
fide  temporary  residence  of  a  master,  with  his  slave, 
in  a  non-slaveholding  nation,  the  animus  revertendi 
will  protect  the  master's  rights  in  his  slave  to  the 
extent  of  his  personal  service,  and  the  right  to  return 
with  him  to  his  domicile.     At  the  same  time,  if  this 
privilege  is  used  to  evade  the  local  laws  of  the  nation 
with  reference  to  slavery ;  or  the  exercise  of  it  be- 
comes so  general  as  to  interfere  with  the  policy,  or 
be  prejudicial  to  the  interest  of  the  government  or 
its  people,  the  courts  will  not  violate  the  principles 
of  comity  in  refusing  their  aid  to  enforce  these 
rights. 

§  155.  It  will  be  remarked,  that  in  this  investiga- 
tion we  have  been  considering  the  principles  govern- 
ing the  courts  of  distinct  and  totally  independent 
nations.  How  far  these  principles  will  be  modified, 
and  with  how  much  greater  force  the  requisitions  of 
comity  should  apply  to  the  States  of  this  Union, 
bound  together  by  a  common  constitution,  and  form- 
ing all  together,  in  one  view,  a  single  sovereignty, 
we  shall  consider  fully  hereafter. 


CHAPTER  VIII. 

SAME    SUBJECT   CONTINUED,    AND   EXAMINED   IN   THE 
LIGHT   OF   THE   OPINIONS   OF   FOREIGN   JURISTS. 

§  156.  HAYING  examined,  upon  principle,  the  ques- 
tion, whether  the  condition  of  slavery  is  an  exception 
to  the  general  rule,  that  the  status  of  an  individual 
is  to  be  determined  by  the  law  of  his  domicile,  and 
having  arrived  at  certain  conclusions,  our  next  duty 
is  to  consider  how  far  these  conclusions  are  supported 
by  the  authority  of  adjudged  cases  or  the  opinions 
of  distinguished  jurists. 

§  157.  Judge  Story,  in  his  Conflict  of  Laws,1  says, 
"  There  is  a  uniformity  of  opinion  among  foreign 
jurists  and  foreign  tribunals,  in  giving  no  effect  to 
the  state  of  slavery  of  a  party,  whatever  it  might 
have  been  in  the  country  of  his  birth,  or  of  that  in 
which  he  had  been  previously  domiciled,  unless  it  is 
also  recognized  by  the  laws  of  the  country  of  his 

i  Section  96.  Burge,  in  his  Treatise  on  Colonial  and  Foreign 
Law,  vol.  i,  p.  738,  makes  the  same  assertion,  almost  verbatim; 
evidently  with  Judge  Story's  work  before  him ;  and  refers  to  the 
same  authorities  with  Judge  Story,  viz.,  Christinaeus  and  Grrene- 
wegen.  Burge  also  refers  to  the  Conflict  of  Laws,  as  an  authority, 
and  the  later  editions  of  that  work  refer  to  Burge  as  an  authority. 
It  is  easy  to  multiply  authorities  in  this  way. 


SLAVES   ESCAPING   IKTO    OTHER   STATES.  139 

actual  domicile,  and  where  he  is  found,  and  it  is 
sought  to  be  enforced." 

Let  us  examine  into  the  correctness  of  this  broad 
statement  ;J  and  we  will  first  inquire  as  to  the 
opinions  of  foreign  jurists,  and  next  the  decisions  of 
foreign  tribunals. 

§  158.  In  support  of  his  statement,  as  to  the 
opinions  of  foreign  jurists,  Judge  Story  quotes  as 
follows :  "  Christinaeus  states  this  as  a  clear  rule, 
affirmed  by  judicial  decisions,  '  Propter  libertatis 
personarum  usum,  hie  per  aliquot  saacula  continue 
observatum.'  Groenewegen,  speaking  of  slavery, 
says,  'Ejusque  nomen,  hodie  apud  nos,  exolevit. 
Adeo  quidem  ut  servi  qui  aliunde  hue  adducuntur, 
simul  ac  imperii  nostri  fines  intrarunt,  invitis  ipsis 
dominis,  ad  libertatem  proclamare  possint.  Id  quod 
et  aliarum  Christianarum  gentium  moribus  receptum 
est.'"2  These  are  the  only  foreign  jurists  that  the 
research  of  the  learned  and  indefatigable  commen- 
tator has  been  able  to  array  in  favor  of  an  opinion 
of  great  practical  moment.  Let  us  inquire  who 
these  writers  are ;  the  weight  to  which  their  opinions 

1  As  a  precedent  for  disputing  the  opinions  of  a  jurist  so  learned 
in  the  law,  I  extract  the  following  from  the  Life  and  Letters  of 
Joseph  Story,  by  his  son.  In  the  case  of  Rust  v.  Low,  a  note  of 
Lord  Hale's  to  Fitzherbert's  Natura  Brevium  was  quoted  by  the 
opposing  counsel.  Mr.  Story,  in  opening,  said,  "  I  think  I  shall 
satisfy  the  Court  that  Lord  Hale  is  mistaken."  "  What !  Brother 
Story,"  said  Chief  Justice  Parsons,  "you  undertake  a  difficult 
task."  "Nevertheless,"  was  my  father's  reply,  "I  hope  to  satisfy 
your  Honors  that  he  has  really  misapprehended  the  authorities  on 
this  point."  He  satisfied  the  Court  of  Lord  Hale's  error.  Vol. 
i,  pp.  116-118.  a  Conf.  of  Laws,  §  96. 


140  LAW  OF  NEGRO   SLAVERY. 

are  entitled ;  and  the  extent  to  which  these  opinions 
go. 

§  159.  Christingeus  was  a  Belgian  lawyer  of  the  six- 
teenth century,  and  the  work  from  which  this  extract 
was  made  was  entitled,  "  Practicarum  Qugestionum, 
Rerumque,  in  Supremis  Belgarum  Curiis,  actarum  et 
observatarum,  Decisiones."  Groenewegen  was  also  a 
Dutch  lawyer,  and  the  work  from  which  the  extract 
was  made  was  entitled,  "De  Legibus  abrogat,  in  Hol- 
landia,"  &c.  It  will  be  seen,  from  the  very  subject  of 
these  works,  that  neither  of  these  authors  pretended  to 
enter  upon  the  great  field  of  International  Law,  but 
their  investigations  were  confined  to  the  local  laws  of 
their  own  nation.  In  proof  of  which,  I  am  inclined, 
from  a  cursory  examination,  to  believe  that  this  is 
the  only  place  in  the  treatise  of  Judge  Story,  on  the 
Conflict  of  Laws,  in  which  Groenewegen  is  cited  as 
an  authority.  In  fact,  were  it  not  for  a  note,  in 
which  the  commentator  states  that  "Groenewegen 
cites  many  authorities  in  support  of  his  opinion,"  I 
should  shrewdly  suspect  that  the  extract  above 
quoted  came  secondhand,  as  I  find  the  same  verba- 
tim in  a  note  to  Mr.  Hargraves's  argument,  in  the 
celebrated  Somersett  case.1  These  then,  indeed,  are 
foreign  jurists  ;  but  their  opinion  should  weigh  little 
upon  a  branch  of  jurisprudence  which  was  foreign 
to  the  subject  of  their  studies ;  and  more  especially 
should  it  conflict  with  the  opinions  of  those  who 
have  made  the  conflict  of  laws  and  the  comity  of 
nations  the  subject  of  earnest  and  lifelong  investiga- 
tion. 

1  20  Howell's  State  Trials,  62. 


SLAVES   ESCAPING  INTO   OTHER   STATES.  141 

§  160.  But  let  us  see  what  is  the  extent  to  which 
these  opinions  go.  The  quotation  from  Christinseus 
is, "  Propter  libertatis  personarum  usum,  hie  per  ali- 
quot saecula  continue,  observatum."  Which  literally 
means  :  "  This  has  been  observed,  here,  uninterrup- 
tedly for  some  ages,  with  a  view  to  the  security  of 
personal  liberty."1  Upon  examining  the  context,  it 
appears  that  Christineeus  was  referring  to  the  ques- 
tion now  under  consideration,  and  makes  this  state- 
ment upon  the  authority  of  Molanus,  Lib.  Ill,  Canonic, 
ch.  34.  Not  having  access  to  this  book.  I  cannot 
test  his  accuracy.  He  certainly  does  not  pretend  to 
argue  the  question,  but  merely  states  an  historical 
fact.2 

§  161.  The  quotation  from  Grcenewegen  is,  "Ejus- 
que  nomen  hodie  apud  nos  exolevit.  Adeo  quidem 
ut  servi,  qui  aliunde  hue  adducuntur,  sirnul  ac  im- 
perii  nostri  fines  intrarunt,  invitis  ipsis  dominis,  ad 
libertatem  proclamare  possint.  Id,  quod  et  aliarum 
Christianarum  gentium  moribus  receptum  est."  Ren- 
dered thus,  "  And  its  name  at  this  time  hath  grown 
out  of  use  among  us.  So  much  so  indeed  that  slaves 
who  are  brought  hither  from  elsewhere,  so  soon  as 
they  shall  have  entered  the  limits  of  our  govern- 
ment, even  against  the  will  of  their  masters,  can 
appeal  to  the  Judiciary  (proclamare),  in  behalf  of 

1  Burge,  in  his  Treatise  on  Colonial  and  Foreign  Law,  vol.  i,  p. 
749,  states,  that  Christinaeus  and  Gudelin,  in  this  case,  both  agreed 
that  if  the  slave  returned  to  the  slaveholding  State,  the  original 
status  revived. 

2  It  would  appear,  from  Van  Leuwen's  Koman  Dutch  Law,  Lib. 
I,  ch.  v,  and  the  authorities  there  cited,  that  the  decision  referred 
to  by  Christinseus,  was  founded  on  some  local  statute  or  edict. 


142  LAW   OF    NEGRO    SLAVERY. 

their  freedom.  Which  hath  also  been  adopted  among 
the  usages  of  other  Christian  nations."  Upon  this 
authority  I  remark,  that  the  author  is  giving  only 
the  law  of  Holland,  and  we  know  not  but  that 
it  was  so  ordained  by  statute.1  But  even  were  he 
speaking  of  the  law  of  nations,  under  a  particular 
set  of  circumstances,  the  quotation  would  be  cor- 
rect law  ;  were  the  slaves  brought  within  the  realm, 
animo  remanendi,  we  have  seen  that  the  effect  de- 
scribed by  Groenewegen  would  follow.  But  under  a 
different  state  of  facts  we  have  seen  that  this  effect 
would  not  follow.  The  objection  then  that  I  make 
to  the  quotation  as  law  is,  that  it  does  not  specify 
under  what  circumstances  such  is  the  law.2  As  a 
universal  principle  we  have  seen  that  it  is  incorrect. 
The  context  here  too  might  place  the  author  right ; 
unfortunately  I  have  not  access  to  it.3  Certain  it  is, 

1  Since  writing  the  above,  I  find  my  suggestion  partially  con- 
firmed.    The  following  is  Mr.  Henry's  translation  of  the  first  and 
second  articles  of  the  Customs  of  Amsterdam,  as  collected  by  Roze- 
boom.     "  Within  the  city  of  Amsterdam,  and  its  freedom,  all  men 
are  free,  and  none  are  slaves.     Also,  all  slaves  who  shall  come  or 
be  brought  within  this  city  and  its  freedom,  are  free,  and  out  of 
the  power  of  their  masters,  and  their  wives,"  &c.     Henry's  Points 
in  Manumission,  160. 

2  By-the-by,  the  same  objection  applies  to  all  that  Judge  Story 
says  on  the  subject  of  slavery,  in  his  work  on  the  Conflict  of  Laws. 
Usually  accurate  and  minute,  he  seems  nowhere  to  consider  that 
the  circumstances  under  which  the  slave  comes  within  the  juris- 
diction of  another  State,  affects  in  any  manner  the  question  as  to 
his  status.     See  §§  25,  27,  96,  et  seq. 

3  Since  writing  the  above,  by  the  kindness  of  Professor  Green- 
leaf,  a  short  time  before  his  decease,  I  have  a  copy  of  the  entire 
title,  and  find  that  my  criticism  is  correct.    The  words  quoted  are  all 
the  author  says  upon  the  subject,  and  he  is  not  pretending  to  dis- 
cuss the  question  under  our  consideration. 


SLAVES   ESCAPING   INTO    OTHER   STATES.  143 

this  quotation  does  not  justify  the  declaration  of  the 
"  uniformity  of  foreign  jurists  on  this  subject." 

§  162.  But  even  if  this  authority  fully  supported 
Mr.  Story,  that  author  should  have  been  aware  that 
in  1736,  the  Supreme  Court  of  Holland,  with  the 
celebrated  Bynkershrek  as  its  President,  in  a  case  of 
a  fugitive  slave,  declared  the  law  to  be  precisely  the 
reverse  of  the  quotation  from  Groenewegen,  and  just 
as  we  are  now  contending  to  be  correct.1  To  put  an 
end  to  all  further  doubt  upon  this  question,  a  statute 
was  passed  23d  May,  1776,  confirming  the  law  as 
pronounced  by  the  Supreme  Court.2 

§  163.  But  to  show  there  is  no  such  "uniformity," 

1  This  case  is  reported  in  the  Observations  of  the  Society  of 
Advocates  on  Grotius's  Introduction  to  the  Laws  of  Holland.  I 
have  availed  myself  of  Mr.  Henry's  translation,  and,  as  it  is  acces- 
sible to  but  few,  I  give  here  the  case  in  full.  "  A  slave  named 
Claas,  who  had  run  away  from  his  mistress,  at  Cura§oa,  and  got 
to  Holland,  was  reclaimed  there  on  the  part  of  his  owner;  and  on 
proceedings  being  instituted  before  the  magistrates  of  Amsterdam, 
the  slave  obtained  a  sentence  in  his  favor.  On  appeal  to  the  Pro- 
vincial Court,  on  the  23d  of  March,  1736,  the  following  sentence 
was  given.  '  The  Court  having  heard  the  report  of  the  Commissa- 
ries, before  whom  the  parties  have  appeared,  and  seen  the  proofs- 
verbal,  with  the  other  vouchers  and  documents,  annul  the  sentence 
of  the  magistrates  of  the  city  of  Amsterdam,  .  .  .  and  declare 
the  appellant  entitled  and  permitted,  by  means  of  a  substitute 
schout  of  Amsterdam,  or  a  marshal  of  this  Court,  to  take  the 
respondent  out  of  the  place  wherein  he  is  now  confined,  and  ship 
him  on  board  the  first  vessel  bound  to  Curayoa,'  &c.  The  slave 
appealed  from  this  judgment  to  the  Supreme  Court,  who  'having 
maturely  deliberated  on  and  weighed  and  considered  everything 
pertaining  to  this  matter/  affirmed  the  decision  of  the  Provincial 
Court,  3d  July,  1736."  Henry's  Points  in  Manumission,  156,  et 
seq. ;  see  also  Van  der  Linden's  Laws  of  Holland,  Bk.  I,  ch.  ii, 
§  3.  »  Ibid.  159. 


144  LAW   OF   NEGRO   SLAVERY. 

Vinnius,  with  whose  works  no  jurist  in  America  was 
better  acquainted  than  Judge  Story,  and  who  was 
writing  upon  the  very  subject  we  are  now  consider- 
ing, the  jus  personale,  as  we  have  before  seen,  ap- 
plies the  general  rule  as  to  capacity  directly  to  the 
slave.  "Item,  jus  personse  hie  esse,  quod  statum  et 
conditionem  personas  sequitur.  Nam  status  ipse  est 
personae  conditio  aut  qualitas,  quse  efficit  ut  hoc  vel 
illo  jure  utatur,  ut  esse  liberum  esse  servum,  esse 
ingenuum,  esse  libertinum,  esse  alieni,  esse  sui  juris."1 
"  A  personal  statute  is  that  which  follows  the  status 
and  condition  of  the  person.  For  status  itself  is  that 
condition  or  personal  quality  which  makes  one  free 
or  slave,  noble  or  ignoble,  capable  or  incapable,  by 
whatever  law  considered."  With  this  opinion  of  Vin- 
nius, Huber  agrees,2  whose  treatise,  "  De  Conflictu 
Legum,"  was  the  model,  after  which  Judge  Story 
wrote  his  work,  "  On  the  Conflict  of  Laws." 

§  164.  So  Heineccius,  speaking  of  fugitives : 
"  This  indeed  is  no  hindrance  to  the  master,  who 
may  claim  his  slave  wherever  found.  So  far  is  this 
restriction  from  taking  the  slave  from  his  master, 
that  there  may  be  no  safe  refuge  for  him  while  a 
fugitive,  not  even  in  the  prefects  and  estates  of 
kings  themselves.  This  appears  from  the  Capitula- 
ries of  the  Kings  of  the  Franks,  in  which  we  read 
thus :  '  If  any  slaves  belonging  to  the  Church,  or 
any  freeman,  take  refuge  in  our  jurisdiction,  and  are 

1  Lib.  I,  De  Jure  Personal!,  tit.  iii.  This  opinion  of  Vinnius 
did  not  escape  Judge  Story's  notice;  as  we  find  this  very  sentence 
quoted  by  him  in  the  same  treatise  on  the  Conflict  of  Laws,  §  93,  c. 

a  Lib.  I,  tit.  i,  c.  iii. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      145 

demanded  by  their  masters  or  their  agents,  if  the 
governor  or  steward  shall  perceive  that  he  cannot 
justly  hold  them  within  our  dominion,  let  him  eject 
them,  and  let  their  masters  take  possession  of  them."1 
John  Voet,  after  declaring  the  effect  of  personal 
statutes,  following  the  person  everywhere,  and  ap- 
plying it  to  questions  of  infancy,  nobility,  legitimacy, 
&c.,  adds,  "  Nee  ulla  inutatione  loci,  aut  illam  quam 
habet  exuere,  aut  aliam  induere  posse  qualitatein." 
"And  by  no  change  of  place  can  one  put  off  the 
status  which  he  has,  or  put  on  another  which  he  has 
not/'2 

§  165.  The  modern  civilians  uniformly  extend 
the  rule,  that  personal  statutes  follow  the  person  into 
any  jurisdiction,  to  the  question  of  freedom  and 
slavery.  Thus,  Rodenberg,  after  stating  the  gene- 
ral rule,  gives  a  reason  for  it :  "  Cum  enim,  ab  uno 
certoque  loco  statum  hominis  legem  accipere  ne- 
cesse  esset,  quod  absurdum  earumque  reruin  natu- 
raliter  inter  se  pugna  foret,  ut  in  quo  loco  quis  iter 
facierit,  aut  navigans  delatus  fuerit,  totidem  ille 
statum  mutaret  aut  conditionem ;  ut  uno,  eodem- 
que  tern  pore  hie  sui  juris,  illic  alieni  futurus  sit,"  &c. 
"  Because  it  must  be  necessary  for  the  law  to  deter- 
mine a  man's  status  from  a  single  and  certain  place, 
to  avoid  the  conflict  and  absurdity  which  would 
arise,  that  whenever  one  made  a  journey,  or  was 
driven  by  sea,  so  often  he  would  change  his  status 
and  condition,  so  that  at  one  and  the  same  time, 
here  he  would  be  free,  and  there  he  would  be  subject 

1  Opera,  vol.  ii,  896 ;  De  Prsesc.  §  12. 
*  John.  Voet,  Lib.  I,  tit.  iv,  Parts  II,  §  7. 
10 


146  LAW  OF   NEGRO    SLAVERY. 

to  another."1  He  extends  this  expressly  to  feudal 
vassals,  stating  that  such  is  the  concurrent  testimony 
of  the  jurists,  with  two  exceptions.2 

§  166.  Boullenois,  in  his  extended  work  on  Per- 
sonal Statutes,  comments  upon  this  statement  of 
Rodenberg  at  some  length,  and  concurs  with  his 
opinion.  He  cites  and  rebuts  the  contrary  view 
taken  by  M.  Guizot.3  Bouhier,  speaking  of  Personal 
Statutes,  says,  "  Telles  sont  les  loix  qui  fixent  1'age 
de  la  puberte,  et  de  la  majorite ;  celles  qui  reglent 
la  qualite  de  lapersonne  libre  ou  non  libre"  "  Such  are 
the  laws  which  fix  the  age  of  puberty  and  majority ; 
those  which  regulate  the  status  of  a  person,  whether 
free  or  slave."4  Merlin  on  the  same  point  says, "  Tels 
sont  les  statuts  qui  regardent  la  naissance,  la  legitime, 
la  liberte,"  &c., — "  Such  are  those  which  look  to  birth, 
legitimacy,  freedom,"  &c., — and  adds,  "  Le  statut  de 
domicile  regie  1'etat  de  la  personne,  et  sa  capacite  ou 
incapacite  personnelle."  "  The  law  of  the  domicile  re- 
gulates the  age  of  the  person  and  his  personal  capa- 
city or  incapacity."5  Froland  agrees  fully  with  these, 
and  gives  the  rule  broadly  without  exception.6 

•  §  167.  Of  English  jurists  we  have  no  works  from 
which  to  deduce  opinions  upon  this  question.     In 
truth,  the   English    lawyers  seem    to    have   been 

1  Cap.  iii,  §  4.  »  Cap.  v,  §  17. 

3  Traite  de  la  Personalite,  Observation  xxxi,  torn,  i,  pp.  876,  878; 
see  also  tit.  i,  ch.  ii,  Obs.  iv,  where  he  quotes,  as  authority, 
Queen  Elizabeth,  "  I  do  not  wish  my  sheep  marked  with  any  other 
mark  than  my  own." 

*  Observations,  &c.,  ch.  xxiii,  §  16,  p.  452. 

5  Repertoire  de  Jurisprudence,  mot  Statut. 

6  Mem.,  de  Stat. 


SLAVES    ESCAPING   INTO    OTHER   STATES.  147 

strangers  to  the  discussions  among  the  jurists  on  the 
continent.1  Outside  of  their  reports,  we  have  the 
opinion  of  only  two  of  their  learned  jurists.  In 
1740,  some  difficulties  having  been  suggested  upon 
this  question,  the  English  colonists  applied  to  the 
then  attorney  and  solicitor  general  of  England 
(afterwards  Lord  Hardwicke  and  Lord  Talbot),  for 
their  opinion ;  which,  after  due  consideration,  was 
given,  to  the  effect  that  the  carrying  of  a  negro  slave 
from  the  colonies  to  England,  did  in  no  manner  inter- 
fere with  the  master's  control  over  him. 

1  20  Howell's  State  Trials,  81. 


CHAPTER  IX. 

SAME   SUBJECT   CONTINUED,  AND   DECISIONS   OF   FOREIGN 
JUDICIAL   TRIBUNALS   EXAMINED. 

§  168.  WE  come  now  to  consider  how  far  adjudged 
cases  in  the  courts  of  foreign  tribunals  sustain  the 
declaration  quoted  from  the  "  Conflict  of  Laws,"  and 
contravene  the  conclusions  to  which  we  have  ar- 
rived. 

We  have  already  alluded  to  the  decision  of  the 
Supreme  Court  of  Holland,  in  the  case  of  the  slave 
Claas.1 

In  France,  the  first  and  only  case  which  comes  to 
us  in  such  a  form  as  to  be  reliable,2  is  found  in  the 
thirteenth  volume  of  the  "  Causes  Celebres,"  p.  492, 
and  is  entitled,  "  La  liberte  reclamee  par  un  negre 
contre  son  maitre."  This  cause  occurred  in  1738,  and 
the  slave  was  liberated  by  the  Court.  In  the  argu- 
ment of  counsel  in  this  case,  there  is  a  great  deal  of 
declamation  about  France,  "Mere  de  la  Liberte,"  "the 

1  Note  to  §  162. 

a  The  cases  mentioned  by  Bodin,  De  Kepublica,  Lib.  I,  cap.  v, 
and  referred  to  by  Mr.  Hargrave,  in  his  argument  in  the  Somersett 
case,  are  too  indefinitely  reported  to  be  commented  on.  The  latter 
is  admitted,  by  Mr.  Hargrave,  to  be  wrong,  being  violative  of  the 
rights  of  an  ambassador,  whose  slave,  it  seems,  could  breathe,  even 
the  pure  air  of  France.  See  ante,  note  to  §  150. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      149 

free  air  of  France  being  too  pure  for  a  slave  to 
breathe,"  &c. ;  which  was  as  foreign  to  the  case  as  it 
was  unbecoming  a  court  professing  to  decide  upon 
principles  of  law.  The  facts  of  the  case,  and  the 
questions  at  issue,  were  simply  as  follows.  In  1716, 
Louis  XVI,  hearing  that  many  of  the  colonists  in 
the  French  West  Indies  were  desirous  of  bringing 
or  sending  their  slaves  to  France  for  the  purpose  of 
being  instructed  in  the  doctrines  and  practices  of  the 
Church,  and  of  being  taught  in  some  art  or  trade, 
and  that  such  colonists  were  fearful  that  thereby 
they  would  recover  their  liberty,  issued  an  edict, 
"concernant  les  esclaves  negres  des  colonies,"  in 
which,  after  reciting  these  fears,  it  is  decreed  that 
such  colonists  may  bring  or  send  any  of  their  slaves 
to  France,  for  these  purposes,  there  to  remain,  upon 
complying  with  certain  prescribed  regulations;  and 
the  edict  further  provided  that,  on  failure  to  comply 
with  these  regulations,  the  negroes  shall  become 
free,  and  the  owners  shall  lose  all  property  in  them.1 

1  This  edict,  after  reciting,  inter  alia,  "  Comme  nous  avous  etc" 
informes,  que  plusieurs  habitans  de  nos  iles  de  1'Amerique  desirent 
envoyer  en  France  quelques — uns  de  leurs  esclaves  pour  les  confirmer 
dans  les  instructions  et  dans  les  exercices  de  notre  religion,  et  pour 
leur  faire  apprendre  quelque  art  et  metier,  dont  les  colonies  rece- 
vroient  beaucoup  d'utilite  par  le  retour  de  ces  esclaves  j  mais  que 
ces  habitans  craignent  que  les  esclaves  ne  pretendent  etre  libres  en 
arrivant  en  France,  ce  qui  pourroit  causer  aux  dits  habitans  une  perte 
considerable,  et  les  detourer  d'un  objet  aussi  pieux  et  aussi  utile — 

"  Le  Hoi  ordonne  que  si  quelques  uns  des  habitans  des  colonies, 
ou  des  officiers  employes  dans  1'etat  veulent  amener  avec  eux  des 
esclaves  negres,  de  1'un  ou  de  1'autre  sexe,  en  qualite  de  domes- 
tiques  ou  autrement,  pour  les  fortifier  dans  la  religion,  &c.,  les  pro- 
prietaires  seront  tenus,  d'en  obtenir  la  permission  des  gouverneurs 


150  LAW  OF   NEGRO   SLAVERY. 

A  master  of  St.  Domingo  carried  with  him,  in  1738, 
to  France,  a  negro  slave,  and  failed  to  comply  with 
the  requisitions  of  the  edict.  The  only  questions 
submitted  in  that  case  and  decided  by  the  Court 
were,  1st.  Whether  the  party  claiming  the  negro 
was  such  a  person,  as  by  the  French  King's  edict 
of  October,  1716,  was  permitted,  under  certain  for- 
mally prescribed  conditions,  to  bring  slaves  from  the 
French  West  Indian  Colonies  into  France,  and  to 
retain  them  there  ?  2d.  Whether  he  had  performed 
those  conditions?1 

§  169.  It  is  evident  that  in  this  case  the  question 
now  under  consideration  could  not  arise.  That  the 
Government  of  France  had  the  right  to  prescribe 
such  regulations  in  reference  to  slaves  coming  from 
their  own  colonies  is  unquestionable,  and  all  that 
the  court  decided  was,  the  regulations  had  not  been 
complied  with.  Such  was  the  view  taken  of  this 
case  (when  cited  in  the  argument  of  the  Somersett 
case)  by  Lord  Mansfield.  "As  to  France,"  said  he, 
"  the  case  stated  decides  no  farther  than  that  king- 

generaux  ou  commandans,  dans  chaque  isle ;  laquelle  permission 
contiendra  le  nom  du  proprietaire,  celui  des  esclaves,  leur  age  et 
leur  signalement. 

"  Les  proprietaires  des  dits  esclaves  seront  pareillement  obliges 
de  faire  enregistrer  la  dite  permission  au  grefie  de  la  jurisdiction 
du  lieu  de  leur  residence,  avant  leur  depart,  et  en  celui  de  1'ami- 
raute  du  lieu  de  debarquement,  dans  huitaine  apres  leur  arrivee 
en  France." 

After  other  things,  it  provides,  "faute  par  les  maitres  des  esclaves 
d'observer  les  formalites  prescrites  par  les  precedens  articles,  les 
dits  esclaves  seront  libres,  et  ne  pourront  etre  reclames."  See  20 
Howell's  State  Trials,  pp.  12,  15,  notes. 

1  20  Howell's  State  Trials,  12,  note. 


SLAVES    ESCAPING   INTO    OTHER   STATES.  1,51 

dom,  and  there  freedom  was  claimed,  because  the 
slave  had  not  been  registered  in  the  port  where  he 
entered  conformably  to  the  edict  of  1716."1  It  may 
be  said,  however,  that  the  very  existence  of  such  an 
edict,  would  show  the  opinion  of  the  jurists  of  the 
day,  that  under  the  law  as  it  previously  existed,  such 
a  permission  from  the  government  was  necessary  to 
authorize  the  introduction  of  slaves.  This  is  doubt- 
less true,  for  we  have  seen  that  the  object  of  the 
edict  was  to  allow  the  slaves  to  remain  in  France 
an  indefinite  time,  and  that  such  a  residence  would, 
upon  the  principles  heretofore  discussed,  work  an 
emancipation  of  the  slave. 

§  170.  In  Scotland,2  two  cases  are  reported  in  the 
Dictionary  of  Decisions.  The  first,  of  Sheddan  v. 
A  Negro,  occurring  in  1757,  the  latter,  of  Knight  v. 
Wedderburn,  in  1778.  In  the  first  case,  during  the 
investigation  the  negro  died,  and  the  point  was  not 
determined.  The  case  of  Knight  v.  Wedderburn 

'  20  Howell's  State  Trials,  70. 

a  It  may  be  well  to  remark,  that  in  the  Scotch  Elementary 
Treatises  or  Institutes,  the  subject  of  the  Comity  of  Nations 
obtains  no  place,  and  consequently,  their  authority  is  arrayed 
directly  on  neither  side.  Forbes,  whose  Institutes  of  the  Law  of 
Scotland,  were  published  in  1722,  says,  "  Slaves  are  those  who 
are  at  the  arbitrary  will  of  their  masters,  and  may  be  sold  by  him 
as  his  goods.  We  have  no  vestiges  of  slavery  remaining  in  Scot- 
land, except  in  coal-heavers  and  salt-makers ;"  vol.  i,  73.  These, 
he  states,  "  without  any  express  paction,  are  inthralled  or  astricted 
during  their  life;"  "and  may  be  recovered  by  him  from  any  un- 
lawful possessor,  to  whom  they  unwarrantably  revolt  from  their 
master's  service."  Ibid.  See  also  Erskine's  Institutes  of  the 
Law  of  Scotland,  Bk.  I,  tit.  vii,  §  61.  He  adds,  §  62,  that 
"  there  appears  nothing  repugnant,  either  to  reason  or  the  peculiar 
doctrines  of  Christianity,  in  a  contract,  by  which  one  binds  himself 


152  LAW  OF   NEGRO   SLAVERY. 

(1778),  we  will  examine  more  fully.  The  facts 
were,  "  The  commander  of  a  vessel  in  the  African 
trade,  having  imported  a  cargo  of  negroes  into 
Jamaica,  sold  Joseph  Knight,  one  of  them,  to  Mr. 
Wedderburn.  Knight  was  then  a  boy,  seemingly 
about  twelve  or  thirteen  years  of  age.  Some  time 
after  Mr.  Wedderburn  came  over  to  Scotland,  and 
brought  this  negro  along  with  him,  as  a  personal 
servant.  The  negro  continued  to  serve  him  for 
several  years  without  murmuring,  and  married  in 
the  country.  But  afterwards,  prompted  to  assert 
his  freedom,  he  took  the  resolution  of  leaving  Mr. 
Wedderburn's  service,  who  being  informed  of  it,  got 

to  perpetual  service  under  a  master,  who,  on  his  part,  is  obliged  to 
maintain  the  other  in  all  the  necessaries  of  life ;"  and  cites  for  his 
authority,  Grotius  de  Jure  Bel.  Lib.  II,  ch.  v,  §  27.  He  adds,  as 
a  peculiar  fact,  that  "  by  the  practice  of  Holland,  negro  slaves,  as 
soon  as  they  set  their  foot  in  the  Dutch  territory,  may  assert  their 
freedom  from  servitude,  in  spite  of  their  masters ;"  but  does  not 
pretend  that  such  was  the  law  of  Scotland.  We  have,  therefore, 
negatively  his  authority  that  such  was  not  the  law  of  Scotland. 

McDouall,  in  his  Institutes  of  the  Law  of  Scotland,  Bk.  I,  tit.  ii, 
says,  that  "  slavery,  in  a  proper  sense,  does  not  take  place  with  us, 
though  it  was  anciently  our  law."  He  admits  "the  state  of  coaliers 
and  salters  resembles,  in  some  respects,  that  of  slaves,"  meets 
the  idea  that  "  slavery  is  inconsistent  with  Christian  liberty,"  and 
declares  that  "this  opinion  has  no  support  from  the  apostolical 
doctrine,"  and  adds,  "  if  it  had  prevailed  in  primitive  times,  it  is 
probable  the  Roman  Empire  would  never  have  embraced  Chris- 
tianity*; for  it  had,  in  a  great  measure,  been  a  forfeiture  of  men 
of  substance  of  those  days,  by  withdrawing  from  them  their  pro- 
perty in  their  slaves." 

There  certainly  is  nothing  in  these  principles,  announced  by 
these  writers  on  Scotch  law,  inconsistent  with  the  position  we 
maintain,  that  slavery  is  lawful  where  not  abolished,  and  forms  no 
exception  to  the  general  rule,  that  the  personal  status  is  decided 
by  the  law  of  the  domicile. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      153 

him  apprehended  on  a  warrant  of  the  justices  of  the 
peace."  The  case  being  brought  before  the  Sheriff 
of  the  County  (Perthshire),  after  some  procedure, 
he  decided  :  "  That  the  state  of  slavery  is  not  re- 
cognized by  the  laws  of  this  kingdom,  and  is  incon- 
sistent with  the  principles  thereof;  that  the  regula- 
tions in  Jamaica  concerning  slaves,  do  not  extend 
to  this  kingdom,  and  repelled  the  claim  to  perpetual 
service  of  the  defender,  Mr.  Wedderburn."  This 
cause  was  argued  at  length  before  the  Court  of  Ad- 
vocates, counsel  for  the  master  contending  that  Tie 
had  a  right  to  his  perpetual  service  in  /Scotland,  or  to 
send  him  back  to  the  plantations.  Counsel  for  the 
negro  do  not  seem  to  deny,  that  if  the  negro  had 
been  enslaved  in  Jamaica  according  to  any  prin- 
ciple recognized  by  the  law  of  nations,  "on  the 
grounds  of  equity,  the  court  would  give  effect  to  the 
laws  of  other  countries ;"  but  they  insist  that  this 
negro  being  a  child  at  the  time  he  was  carried  to 
Jamaica,  could  be  enslaved  "on  force  and  usurpation 
alone,  which  no  writer  on  the  law  of  nations  has 
vindicated  as  a  justifiable  origin  of  slavery."  That 
the  law  of  Jamaica  was  consequently  unjust,  and 
could  not  be  supported.  This  view  of  counsel  was 
sustained  by  the  Court,  whose  decision  is  given  in 
these  words  :  "  The  Court  were  of  opinion  that  the 
dominion  assumed  over  this  negro  under  the  law  of 
Jamaica,  being  unjust,  could  not  be  supported  in  this 
country  to  any  extent ;  that  therefore  the  defender 
has  no  right  to  the  negro's  service  for  any  space  of 
time,  nor  to  send  him  out  of  the  country  against 
his  consent."1  . 

1  20  Howell's  State  Trials,  note,  pp.  1-7.     It  is  a  fact  worthy 


154  LAW  OF   NEGRO   SLAVERY. 

§  171.  This  is  the  case  in  which  Judge  Story  says 
that  it  was  solemnly  adjudged,  that  "no  effect  what- 
ever" would  be  given  to  the  state  of  slavery,  "  what- 
ever it  might  have  been  in  the  country  of  his  birth," 
unless  it  was  also  recognized  by  the  laws  of  the 
country  where  it  is  sought  to  be  enforced.  On  the 
contrary,  I  remark,  upon  this  case,  1st.  That  directly 
the  opposite  principle  is  adjudicated,  the  counsel  ad- 
mitting, and  the  decision  of  the  Court  sustaining  the 
counsel,  that  if  the  slavery  of  the  negro,  in  Jamaica, 
was  justifiable,  under  the  law  of  nations,  the  Court 
would  give  it  effect  in  Scotland.  The  decision  is 
based  upon  the  want  of  title  in  the  master  under 
the  "  law  of  nations."1 

2d.  The  facts  show  a  case  in  which,  upon  the 

of  note,  that  such  was  the  public  feeling  at  the  time  of  the  deci- 
sion of  this  case  in  Scotland,  and  Somersett's  case  in  England, 
that  even  the  men  of  literature  prepared  arguments  to  be  read  in 
the  courts.  That  "faithful  chronicler/'  Boswell,  has  retained  Dr. 
Johnson's  argument  in  this  case,  and  it  is  worthy  of  examination, 
as  being  "  the  seed  argument  in  the  propagation  of  abolition  doc- 
trines." Fletcher's  Studies  on  Slavery,  68.  The  course  of  reason- 
ing followed,  is  confirmatory  of  the  view  taken  in  the  text,  as  to 
the  ground  on  which  this  decision  is  based.  2  Boswell's  Life  of 
Johnson,  132. 

1  Were  it  necessary,  in  this  connection,  to  show  that  there  are 
circumstances  under  which  slavery  is  justifiable,  and  recognized 
by  the  law  of  nations,  I  would  refer  to  Judge  Story's  own  deci- 
sion, in  the  case  of  La  Jeune — Eugenie  (2  Mason  K.  90),  where, 
in  spite  of  the  strong  anti-slavery  feeling,  which  biassed  and  warped 
his  judgment  whenever  the  question  of  slavery  came  before  him, 
he  says,  "  Sitting  in  an  American  Court  of  Judicature,  I  am  not 
permitted  to  deny  that,  under  some  circumstances,  slavery  may 
have  a  lawful  existence;  and  that  the  practice  may  be  justified  by 
the  condition  or  wants  of  society,  or  may  form  a  part  of  the  domes- 
tic policy  of  a  nation." 


SLAVES  ESCAPING  INTO  OTHER  STATES.      155 

principles  we  have  heretofore  investigated,  the 
comity  of  nations  would  not  have  required  the 
courts  of  Scotland  to  have  enforced  the  laws  of  Ja- 
maica. For  it  seems  that  the  negro  had  been  actu- 
ally domiciled  in  Scotland  for  "  several  years,"  and 
had  been  permitted  there  to  marry ;  and  the  animus 
remanendi  appears  from  all  the  facts  of  the  case. 

So  far  then  from  opposing  the  views  I  have  ad- 
vanced, this  case  goes  farther  than  principle  would 
require,  in  giving  effect  to  the  status  of  a  slave,  in 
a  new  domicile. 

§  172.  I  come  now  to  examine  the  decisions  of 
the  English  courts. 

Before  doing  so,  it  will  be  well  enough  to  consider, 
historically,  the  position  not  only  of  England,  but 
of  the  English  law,  at  the  time  when  the  leading 
decisions  were  made;  not  for  the  purpose  so  much 
of  avoiding  the  effect  of  the  decisions,  but  with  a 
view  to  ascertain  the  amount  and  sources  of  infor- 
mation of  the  courts  and  counsel,  in  order  to  deter- 
mine the  weight  to  which  their  dicta  are  entitled.1 


"-• 


1  We  are  too  frequently  prone  to  give  weight  to  a  name,  without 
going  back  to  weigh  the  value  of  an  opinion  from  the  circum- 
stances, &c.,  under  which  it  was  made.  Because  a  Judge  has 
exhibited  great  learning  on  one  branch  of  the  law,  we  err  in  attri- 
buting to  him  the  same  position  on  every  branch.  The  opinion  of 
Sir  Isaac  Newton  on  a  branch  of  science,  e.  g.,  Geology,  to  which 
his  attention  was  never  devotedly  turned,  would  not  weigh  a  feather 
with  scientific  men  of  this  generation,  in  opposition  to  the  researches 
or  opinions  of  others,  much  less  distinguished,  but  much  better  ac- 
quainted with  the  subject.  So,  in  law,  Coke,  Holt,  and  Mansfield, 
should  weigh  no  more  on  a  branch  of  jurisprudence  foreign  to  their 
studies.  Of  course,  the  onus  is  upon  the  declarant,  to  show  that 
any  branch  of  the  law  escaped  their  attention. 


156  LAW   OF   NEGRO   SLAVERY. 

It  is  a  fact  too  notorious  to  require  proofs,  that  the 
commerce  of  England  had  never  extended  itself 
sufficiently  to  feel  the  trammels  of  the  strict  and 
almost  rude  rules  of  the  common  law,  until  the  days 
of  Lord  Mansfield,  to  whom  was  due  the  honor,  and 
in  whom  was  the  capacity  of,  developing  that  system 
of  mercantile  law  which  the  necessity  of  the  times 
required. 

It  is  but  a  fair  inference  from  this  fact,  combined 
with  many  others,  suggesting  themselves  to  any  stu- 
dent of  history,  that  her  international  communica- 
tion, prior  to  that  period,  was  very  limited  with  the 
nations  of  Europe.  The  consequence  was  (what  the 
reports  demonstrate),  that  questions  of  international 
law  were  very  rare  in  the  courts  of  England.  To 
the  bench  and  to  the  bar,  therefore,  no  inducements 
were  held  out  for  a  close  investigation  and  study  of 
this  (at  this  day)  important  branch  of  jurisprudence. 
Confirmatory  of  these  views  is  the  fact,  that  Judge 
Story's  work  on  the  Conflict  of  Laws,  was  the  first 
treatise  in  the  English  language  on  this  important 
subject ;  and  the  only  treatise  within  the  library  of 
the  English  jurists,  until  the  work  of  Mr.  Burge,  on 
"  Foreign  and  Colonial  Law."1 

§  173.  Chancellor  Kent  says,  "The  doctrine  of 
the  lex  loci  is  replete  with  subtle  distinctions  and 
embarrassing  questions,  which  have  exercised  the 
skill  and  learning  of  the  earlier  and  more  distin- 
guished civilians  of  the  Italian,  French,  Dutch,  and 
German  schools,  in  their  discussions  on  highly  im- 

1  Story's  Conf.  of  Laws,  §  10 ;  Surge's  Comm.  on  For.  and  Col. 
Law,  Ded.  p.  10. 


SLAVES   ESCAPING   INTO    OTHER   STATES.  157 

portant  topics  of  international  law.  These  topics 
were  almost  unknown  in  the  English  courts  prior  to 
the  time  of  Lord  Hardwicke  and  Lord  Mansfield, 
and  the  English  lawyers  seem  generally  to  have  been 
strangers  to  the  discussions  on  foreign  law  by  the 
celebrated  jurists  in  continental  Europe."1  In  this 
opinion  Mr.  Burge  agrees;  for,  in  the  Dedication  of 
his  work,  he  says,  "This  branch  of  jurisprudence 
(Conflict  of  Laws)  does  not  appear  to  have  excited 
the  interest  of  English  lawyers."2 

§  174.  The  first  case  in  the  English  Reports, 
touching  the  question,  is  that  of  Butts  v.  Penny.3 
It  was  an  action  of  trover  for  ten  negroes  and  a  half. 
The  special  verdict  found,  that  the  negroes  were 
infidels,  subjects  to  an  infidel  prince,  and  usually 
bought  and  sold  as  merchandise.  That  the  plaintiff 
had  bought  them,  and  was  in  possession  of  them, 
and  that  the  defendant  had  taken  them  out  of  his 
possession.  The  Court  held,  that  negroes  are,  "  by 

1  2  Kent's  Comm.  Lect.  xxxix,  p.  455;  see  also  Life  and  Letters 
of  Story,  vol.  i,  224. 

*  Burge,  on  For.  and  Col.  Law,  Ded.  p.  x. 

3  2  Lev.  201;  3  Keb.  785;  15  Viner's  Abr.  549,  title  Negro. 
I  have  not  alluded  to  the  case  of  the  Russian  slave,  relied  on  by 
Mr.  Hargrave,  in  his  argument  in  the  Somersett  case,  because 
we  have  no  report,  nor  record  of  any  sort,  of  that  case.  Nor  has 
there  been  produced  any  evidence  from  the  court-roll,  of  the  exist- 
ence of  such  a  case.  Mr.  Hargrave  relies  on  a  single  observation  in 
Rushworth's  Historical  Collections,  vol.  ii,  p.  468.  It  is  worthy  of 
notice,  simply  because  we  there  find,  for  the  first  time,  the  announce- 
ment of  the  false  and  ridiculous  proposition  that "  the  air  of  England 
was  too  pure  for  a  slave  to  breathe  in."  I  think  I  am  justified 
in  saying  it  is  false,  when  Mr.  Sumner,  in  his  labored  attack  upon 
the  Fugitive  Slave  Law,  in  the  Senate  of  the  United  States,  was 
forced  to  acknowledge  that  the  claim  was  unfounded.  • 


158  LAW   OF   NEGRO   SLAVERY. 

usage,  tanquam  bona,  and  go  to  administrator  until 
they  become  Christians,  and  thereby  they  are  en- 
franchised." This  decision  seems  to  be  speaking  of 
their  status  under  the  law  of  England. 

§  175.  The  next  case  is  that  of  Gelly  and  Cleve, 
determined  in  the  Common  Pleas  (at  Hil.  Term,  5 
W.  &  M.) ;  and  of  which  we  have  it  stated,  in  1  Ld. 
Raym.  147,  that  it  was  "adjudged  that  trover  will 
lie  for  a  negro  boy,  for  they  are  heathens,  and  there- 
fore a  man  may  have  property  in  them,  and  that  the 
Court,  without  averment  made,  will  take  notice  that 
they  are  heathens." 

§  176.  The  next  case  is  that  of  Smith  v.  Gould,1 
where  trover  was  brought  for  a  negro,  and  other 
articles  of  merchandise.  Verdict  for  plaintiff,  and 
damages  for  the  negro,  £30.  In  arrest  of  judgment 
it  was  contended,  that  trover  did  not  lie,  because 
the  owner's  property  was  not  absolute;  "he  could 
not  kill  him  as  he  could  an  ox."  The  Court  held 
that  trover  did  not  lie,  "  but  seemed  to  think  that 
in  trespass  quare  captivum  suum  cepit  the  plaintiff 
might  give  in  evidence  that  the  party  was  his  negro, 
and  he  bought  him." 

§  177.  The  next  case  is  that  of  Chamberlain  v. 
Harvey,2  which  was  an  action  of  trespass  for  taking 
a  negro.  The  special  verdict  found,  "  that  the  father 
of  the  plaintiff  was  possessed  of  this  negro  and  of 
such  a  manor  in  Barbadoes,  and  that  there  is  a  law 
in  that  country  which  makes  the  negro  a  part  of  the 
real  estate.  That  the  father  died  seized,  whereby 

>  2  Salkeld,  666 ;  2  Lord  Rayni.  1274. 

2 1  Lord  Raym.  146;  3  Ibid.  129;  Garth.  396;  5  Mod.  186; 
15  Viner's  Abr.  549,  title  Negro. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      159 

the  manor  descended  to  the  plaintiff  as  son  and  heir, 
and  that  he  endowed  his  mother  of  this  negro  and 
a  third  part  of  the  manor.  That  the  mother  mar- 
ried Watkins,  who  brought  the  negro  into  England, 
where  he  was  baptized  without  the  knowledge  of  the 
mother.  That  Watkins  and  his  wife  are  dead,  and 
that  the  negro  continued  several  years  in  England, 
and  that  the  defendant  seized  him,"  &c.  After  argu- 
ment at  the  bar  several  times,  it  was  adjudged  that 
the  action  would  not  lie,  there  being  no  averment  of 
a  "  per  quod  servitium  amisit."  The  reasons  for  this 
decision  are  not  given  in  Lord  Raymond's  Reports: 
whether  the  form  of  action  was  defective,  or  the 
baptism  of  the  negro  released  him  from  slavery,  or 
his  residence  in  England  had  given  him  a  new  domi- 
cile there,  is  not  stated.  The  substance  of  the  re- 
port is  given  above.  In  5  Mod.  it  is  said,  "  The 
Court  were  of  opinion  that  no  action  of  trespass 
would  lie  for  the  taking  away  a  man  generally,  but 
that  there  might  be  a  special  action  of  trespass  for 
taking  his  servant  per  quod"  &c.  The  same  reason 
is  given  for  the  decision  in  15  Viner.  There  the 
Court  says,  a  negro  "  is  no  other  than  a  slavish  ser- 
vant," and  the  master  can  maintain  no  other  action 
than  trespass  per  quod,  &c. 

§  178.  There  is  one  other  case  reported  in  Salkeld,1 

1  Vol.  ii,  666.  Barrington,  in  his  Treatise  on  Statutes,  1  Hie. 
II,  says  :  "  It  is  laid  down  that  trover  will  lie  for  a  negro,  in  2  Lev. 
201 ;  and  it  seems  to  be  agreed  by  the  two  cases  in  Salkeld  (vol.  ii, 
666),  that  some  kind  of  action  will  lie  for  a  negro,  though  not  an 
action  of  trover.  I  cannot  say,  indeed,  that  these  cases  are  well 
reported.  The  term  slave  is  certainly  not  unknown  to  our  law;  as 
by  1  Edw.  VI,  ch.  iii,  a  vagabond,  an  idle  servant,  is  to  become 


160  LAW  OF   NEGRO   SLAVERY. 

Smith  v.  Brown  and  Cooper,  the  accuracy  of  which 
is  exceedingly  doubtful.  The  report  states  that  it  is 
an  action  of  indeb.  assumpsit  for  £20,  for  a  negro 
sold  "  in  parochia  beatae  Mariae  de  Arcubus  in  Warda 
de  Cheape,"  and  verdict  for  plaintiff,  and  on  motion 
in  arrest  of  judgment,  Holt,  C.  J.,  held,  "  that  as 
soon  as  a  negro  comes  into  England  he  becomes 
free ;  one  may  be  a  villain  in  England,  but  not  a 
slave."  Et  per  Powell,  J.,  "  The  law  took  no  no- 
tice of  a  negro."  Holt,  C.  J.,  "  You  should  have 
averred  in  the  declaration  that  the  sale  was  in  Vir- 
ginia, and  that  by  the  laws  of  that  country  negroes 
are  saleable."  "  Therefore  -he  directed  the  plaintiff 
should  amend."  "  Then  the  Attorney-General  coming 
in,  said,  they  were  inheritances,  and  transferable  by 
deed,  and  not  without ;  and  nothing  was  done." 
Such  is  the  substance  of  the  report.  Its  accuracy 
is  doubtful,  1st.  Because  it  gives  neither  date  nor 
location  to  the  cause,  but  leaves  it  to  be  inferred 
that  it  was  in  B.  R.  from  the  names  of  the  Judges 
presiding.  2d.  Because  it  states  that  the  same  case 
is  found  in  Lord  Raymond,  in  which  it  does  not  ap- 
pear. 3d.  From  internal  evidence  of  inaccuracy,  viz., 
the  allowance  of  an  amendment,  after  judgment  and 
upon  the  hearing  of  a  motion  in  arrest,  a  proceeding 
unheard  of  in  the  King's  Bench.  And,  also,  the 
statement  that  negroes  were  inheritances  in  Virginia 
at  that  date,  and  transferable  only  by  deed.  4th.  Lord 

a  slave  to  his  master,  and  the  expression  is  frequently  repeated 
in  that  statute."  (p.  240,  notes.)  The  same  view  of  these  cases 
seems  to  be  taken  by  the  Reporter,  in  note  to  Noel  v.  Robinson, 
I  Vernon,  453. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      161 

Mansfield  gave  another  reason  for  its  inaccuracy, 
"  that  it  was  upon  a  petition  to  Lincoln's  Inn  Hall 
after  dinner;  probably,  therefore,  might  not,  as  he 
believes  the  contrary  is  not  unusual  at  that  hour, 
be  taken  with  much  accuracy."1  Perhaps  the  re- 
porter at  that  hour  was  more  accurate  than  the 
Judges.  5th.  Because  the  reason  given  by  the 
Court  for  its  judgment,  viz.,  that  the  contract  was 
laid  in  London,  and  should  have  been  laid  in  Vir- 
ginia, was  directly  opposed  to  all  the  usage  and 
practice  of  the  courts,  which  required  such  an  alle- 
gation in  all  such  contracts,  and  which  allegation 
was  not  traversable. 

§  179.  In  Noel  v.  Robinson,  Mr.  Sergeant  May- 
nard's  case  was  cited,  wherein  it  is  stated  that  "  by 
his  advice  an  action  of  trover  was  brought,  and  judg- 
ment obtained  for  the  fourth  part  of  a  negro."2  This 
is  the  only  reference  I  find  to  this  case. 

§  180.  These  are  the  reported  cases  to  be  found 
in  the  English  reports,  prior  to  the  great  case  of  the 
negro  Somersett.  Upon  them,  we  may  remark,  that 
in  them  all,  excepting  Chamberlin  v.  Harvey,  there 
is  a  distinct  recognition  of  the  property  of  the  mas- 
ter in  the  slave  under  the  laws  of  England.  It  must 
be  admitted  that  the  views  of  the  courts  seem  indis- 
tinct, and  the  reports  are  very  meagre.  The  idea  of 
the  lawfulness  of  the  enslavement  being  dependent 
on  the  infidelity  of  the  negro,  was,  at  that  day,  a 
very  common  one.  The  author  of  the  Mirror  seems 
to  recognize  such  a  distinction  (c.  2,  §  23),  and  the 

1  20  Howell's  State  Trials,  70 ;  Justice  Best,  in  Forbes  v.  Coch- 
rane  &  Cockburn,  2  13.  &  C.  448,  agrees  that  this  case  is  inaccu- 
rately reported.  -  1  Vernon,  453. 
11 


162  LAW   OF  NEGRO   SLAVERY. 

particularity  with  which  the  fact  is  found  in  each  of 
the  special  verdicts  in  the  cases  referred  to,  would 
strengthen  the  supposition  that  such  was  the  opinion 
of  the  courts.  It  is  an  undoubted  historical  fact, 
that  such  an  opinion  prevailed  among  the  planters 
in  both  the  English  and  French  colonies,  and  in- 
duced many  to  deny  to  their  slaves  Christian  instruc- 
tion and  baptism.  Hence,  the  application  and  in- 
quiries of  the  English  planters  to  Lord  Talbot  and 
Lord  Hardwicke,  and  their  celebrated  answers,  to 
which  we  have  had  occasion  to  refer.  And  hence, 
also,  a  provision  in  the  "  Code  Noir,"  with  reference 
to  the  baptism  of  negroes  in  the  French  colonies. 
Lord  Mansfield  states,  that  the  question  was  con- 
sidered on  a  petition  in  Lincoln's  Inn  Hall,  "  on  the 
earnest  solicitation  of  many  merchants,  to  know 
whether  a  slave  was  freed  by  being  made  a  Chris- 
tian. And  it  was  resolved, "not."1  In  Sir  Thomas 
Grantham's  case,  it  appeared  that  "  A.  brought  a 
man-monster  from  the  Indies,  having  the  perfect 
shape  of  a  child  growing  out  of  his  breast,  except 
the  head  (as  an  excrescency),  and  showed  him  for 
profit.  This  man  turned  Christian  and  was  baptized, 
and  detained  from  A."  On  a  Jiomine  replegiando  the 
Court  bailed  him.2 

§  181.  None  of  these  cases  certainly  contravene 
the  positions  we  occupy  with  reference  to  the  duty 
of  the  courts  in  enforcing  the  comity  of  nations. 
Whether  they  are  sufficient  to  show  that  negro  sla- 
very once  existed  in  England  (against  which  idea 

1  20  Howell's  State  Trials,  70. 

3 15  Viner,  306,  title  Horn.  Repl.  3  Mod.  120. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      163 

all  the  ingenuity  of  Mr.  Hargrave  is  brought  to 
bear),  it  is  unnecessary  for  us  to  inquire,  nor  is 
it  necessary  for  us  to  show.1  The  case  of  Cham- 
berlin  v.  Harvey,  even  if  decided  upon  the  ground 
that  the  negro's  residence  in  England  had  released 
him  from  the  master's  control,  would  not  be  opposed 
to  the  views  we  have  advanced,  for  the  length  of 
residence  and  the  circumstances  attending  it,  placed 
the  master's  rights  beyond  the  pale  of  comity. 

§  182.  We  come  now  to  consider  the  leading  case 
of  the  negro  Somersett.2  The  questions  arose  upon 
a  return  to  a  writ  of  habeas  corpus,  served  upon 
Captain  Knowles,  of  the  ship  Ann  and  Mary.  He 
produced  the  body  of  Somersett,  the  negro,  and  re- 
turned for  cause  of  detainer,  that  Somersett  was 
a  negro  and  native  of  Africa,  in  the  regular  course 
of  the  slave-trade,  bought,  carried  to  Virginia,  and 
sold  to  the  claimant,  Charles  Stewart.  That,  on  the 
first  day  of  October,  1769,  said  Stewart  left  America 
on  a  voyage  to  England,  "  having  occasion  to,  and 
for  the  purpose  of,  transacting  certain  affairs  and 
business  in  this  kingdom,  and  with  an  intention  to 
return  to  America  as  soon  as  the  said  affairs  and 
business  should  be  transacted."  That  Stewart 
brought  the  negro  along  with  him,  to  attend  and 
serve  him  during  his  stay,  and  with  an  intent  to 
carry  him  back  when  his  business  should  be  finished; 
"  which  affairs  and  business  are  not  yet  transacted, 
and  the  intention  of  the  said  Stewart  to  return  to 
America  hath  hitherto  continued  and  still  continues." 

1  See  the  remarks  of  the  Court  of  Appeals  of  Maryland,  in  Ma- 
hony  v.  Ashton,  4  Har.  &  McH.  823,  324,  upon  these  cases. 

2  20  Howcll's  State  Trials,  i,  82,  S.  C.  Lofi't, 


164  LAW  OF   NEGRO   SLAVERY. 

That  the  negro  served  Stewart  from  the  time  of  his 
arrival  until  the  1st  October,  1771,  when  he  aban- 
doned the  service  without  the  consent  of  his  master. 
That  Stewart  then  delivered  the  negro  to'  the  re- 
spondent, Knowles,  for  the  purpose  of  being  carried 
back  to  America  to  be  sold. 

Upon  this  return,  argument  was  had  at  great 
length.  On  the  adjournment  over  of  the  Court, 
Lord  Mansfield  said  :  "  The  distinction  was  difficult 
as  to  slavery  which  could  not  be  resumed  after 
emancipation,  and  yet  the  condition  of  slavery  in  its 
full  force  could  not  be  tolerated  here.  Much  consi- 
deration was  necessary  to  define  how  far  the  point 
should  be  carried.  The  Court  must  consider  the 
great  detriment  to  proprietors,  there  being  so  great 
a  number  in  the  ports  of  this  kingdom,  that  many 
thousands  of  pounds  would  be  lost  to  the  owners  by 
setting  them  free.  (A  gentleman  observed  no  great 
danger,  for  in  a  whole  fleet  usually  there  would  not 
be  six  slaves.)  As  to  France,  the  case  stated  de-, 
cides  no  farther  than  that  kingdom ;  and  there  free- 
dom was  claimed,  because  the  slave  had  not  been 
registered  in  the  port  where  he  entered,  conformably 
to  the  edict  of  1706.  Might  not  a  slave  as  well  be 
freed  by  going  out  of  Virginia  to  the  adjacent  coun- 
try, where  there  are  no  slaves,  if  change  to  a  place 
of  contrary  custom  was  sufficient  ?  A  statute,  by 
the  Legislature,  to  subject  the  West  India  property 
to  payment  of  debts,  I  hope  will*  be  thought  some 
proof;  another  act  divests  the  African  Company  of 
their  slaves,  and  vests  them  in  the  West  India  Com- 
pany ;  I  say,  I  hope  these  are  proofs  the  law  has 
interfered  for  the  maintenance  of  the  trade  in  slaves 


SLAVES  ESCAPING  INTO  OTHER  STATES.       165 

and  the  transferring  of  slavery.  As  for  want  of 
application  properly  to  a  court  of  justice,  a  common 
servant  may  be  corrected  here  by  his  master's  pri- 
vate authority.  Habeas  corpus  acknowledges  a  right 
to  seize  persons  by  force,  employed  to  serve  abroad. 
A  right  of  compulsion  there  must  be,  or  the  master 
will  be  under  the  ridiculous  necessity  of  neglecting 
his  proper  business  by  staying  here  to  have  their 
service,  or  must  be  quite  deprived  of  those  slaves  he 
has  been  forced  to  bring  over.  The  case  as  to  ser- 
vice for  life,  was  not  allowed,  merely  for  want  of  a 
deed  to  pass  it." 

§  183.  After  farther  argument,  the  decision  was 
delivered  as  follows : 

LORD  MANSFIELD. — The  question  is,  if  the  owner  had  a 
right  to  detain  the  slave  for  the  sending  of  him  over  to 
be  sold  in  Jamaica.  In  five  or  six  cases  of  this  nature, 
I  have  known  it  to  be  accommodated  by  agreement  be- 
tween the  parties ;  on  its  first  coming  before  me,  I 
strongly  recommended  it  here.  But  if  the  parties  will 
have  it  decided,  we  must  give  our  opinion.  Compassion 
will  not,  on  the  one  hand,  nor  inconvenience  on  the 
other,  be  to  decide,  but  the  law ;  in  which,  the  difficulty 
will  be  principally  from  the  inconvenience  on  both  sides. 
Contract  for  sale  of  a  slave  is  good  here ;  the  sale  is  a 
matter  to  which  the  law  properly  and  readily  attaches, 
and  will  maintain  the  price  according  to  the  agreement. 
But  here,  the  person  of  the  slave  himself  is  immediately 
the  object  of  inquiry ;  which  makes  a  material  difference. 
The  next  question  is,  whether  any  dominion,  authority, 
or  coercion,  can  be  exercised  in  this  country,  on  a  slave 
according  to  the  American  laws?  The  difficulty  of 
adopting  the  relation  without  adopting  it  in  all  its  con- 
sequences, is  indeed  extreme ;  and  yet  many  of  those 
consequences  are  absolutely  contrary  to  the  municipal 
law  of  England.  We  have  no  authority  to  regulate  the 
condition  in  which  law  shall  operate.  On  the  other 
hand,  we  think  the  coercive  power  cannot  be  exercised. 


166  LAW  OF   NEGRO    SLAVERY. 

"Tis  now  about  fifty  years  since  the  opinion  given  by 
two  of  the  greatest  men  of  their  own  or  any  times  (since 
which  no  contract  has  been  brought  to  trial,  between 
the  masters  and  slaves).  The  service  performed  by  the 
slaves,  without  wages,  is  a  sheer  indication  they  did  not 
think  themselves  free  by  coming  hither.  The  setting 
14,000  or  15,000  men  at  once  free,  loose,  by  a  solemn 
opinion,  is  much  disagreeable  in  the  effects  it  threatens. 
There  is  a  case  in  Hobart  (Coventry  and  TVoodfall), 
where  a  man  had  contracted  to  go  as  a  mariner ;  but  the 
now  case  will  not  come  within  that  decision.  Mr.  Stew- 
art advances  no  claims  on  contract ;  he  rests  his  whole 
demand  on  a  right  to  the  negro  as  slave,  and  mentions 
the  purpose  of  detainure  to  be  the  sending  of  him  over 
to  be  sold  in  Jamaica.  If  the  parties  will  have  judg- 
ment,  fiat  justitia  ruatcoelum,  let  justice  be  done,  whatever 
be  the  consequence.  50?.  a  head  may  not  be  a  high  price  ; 
then  a  loss  follows  to  the  proprietors  of  above  700,000/. 
sterling.  How  would  the  law  stand  with  respect  to  their 
settlement;  their  wages?  How  many  actions  for  any 
slight  coercion  by  the  masters?  We  cannot,  in  any  of 
these  points,  direct  the  law,  the  law  must  rule  us.  In 
these  particulars,  it  maybe  matter  of  weighty  considera- 
tion what  provisions  are  made  or  set  by  law.  Mr.  Stew- 
art may  end  the  question  by  discharging  or  giving 
freedom  to  the  negro.  I  did  think,  at  first,  to  put  the 
matter  to  a  more  solemn  argument.  But  if  my  brother 
agree,  there  seems  no  occasion.  I  do  not  imagine,  after 
the  point  has  been  discussed  on  both  sides  so  extremely 
well,  any  new  light  could  be  thrown  on  the  subject.  If 
the  parties  choose  to  refer  it  to  the  Common  Pleas,  they 
can  give  them  that  satisfaction  whenever  they  think  fit. 
An  application  to  Parliament,  if  the  merchant  think 
the  question  of  great  commercial  concern,  is  the  best, 
and  perhaps  the  only  method  of  settling  the  point  for 
the  future.  The  Court  is  greatly  obliged  to  the  gentle- 
men of  the  bar  who  have  spoke  on  the  subject ;  and  by 
whose  care  and  abilities  so  much  has  been  effected,  that 
the  rule  of  decision  will  be  reduced  to  a  very  easy  com- 
pass. I  cannot  omit  to  express  particular  happiness  in 
seeing  young  men,  just  called  to  the  bar,  have  been  able 
so  much  to  profit  by  their  reading.  I  think  it  right  the 
matter  should  stand  over ;  and  if  we  are  called  on  for  a 
decision,  proper  notice  shall  be  given. 


SLAVES   ESCAPING   INTO    OTHEE    STATES.  167 


TRINITY  TERM,  JUNE  22,  1772. 

LORD  MANSFIELD. — On  the  part  of  Somersett,  the  case 
which  we  gave  notice  should  be  decided  this  day,  the 
Court  now  proceeds  to  give  its  opinion.  I  shall  recite 
the  return  to  the  writ  of  habeas  corpus  as  the  ground  of 
our  determination  ;  omitting  only  words  of  form.  The 
Captain  of  the  ship,  on  board  of  which  the  negro  was 
taken,  makes  his  return  to  the  writ  in  terms  signifying 
that  there  have  been,  and  still  are,  slaves  to  a  great 
number  in  Africa ;  and  that  the  trade  in  them  is  autho- 
rized by  the  laws  and  opinions  of  Virginia  and  Jamaica ; 
that  they  are  goods  and  chattels ;  and,  as  such,  saleable 
and  sold.  That  James  Somersett  is  a  negro  of  Africa, 
and  long  before  the  return  of  the  King's  writ,  was 
brought  to  be  sold,  and  was  sold  to  Charles  Stewart,  Esq., 
then  in  Jamaica,  and  has  not  been  manumitted  since ; 
that  Mr.  Stewart,  having  occasion  to  transact  business, 
came  over  hither,  with  an  intention  to  return,  and 
brought  Somersett  to  attend  and  abide  with  him,  and  to 
carry  him  back  as  soon  as  the  business  should  be  trans- 
acted. That  such  intention  has  been,  and  still  continues ; 
and  that  the  negro  did  remain,  till  the  time  of  his  depar- 
ture, in  the  service  of  his  master,  Mr.  Stewart,  and 
quitted  it  without  his  consent;  and  thereupon,  before 
the  return  of  the  King's  writ,  the  said  Charles  Stewart 
did  commit  the  slave  on  board  the  Ann  and  Mary  to 
safe  custody,  to  be  kept  till  he  should  set  sail,  and  then 
to  be  taken  with  him  to  Jamaica,  and  there  sold  as  a 
slave.  And  this  is  the  cause  why  he,  Captain  Knowles, 
who  was  then,  and  now  is,  commander  of  the  above 
vessel,  then  and  now  lying  in  the  river  of  Thames,  did 
the  said  negro,  committed  to  his  custody,  detain  ;  and 
on  which  he  renders  him  to  the  orders  of  the  Court. 

AVe  pay  all  due  attention  to  the  opinion  of  Sir  Philip 
Yorke  and  Lord  Chief  Justice  Talbot,  whereby  they 
pledged  themselves  to  the  British  planters,  for  all 
the  legal  consequences  of  slaves  coming  over  to  this 
kingdom  or  being  baptized,  recognized  by  Lord  Hard- 
wicke,  sitting  as  Chancellor,  on  the  19th  of  October, 
1749,  that  trover  would  lie.  That  a  notion  had  pre- 
vailed, if  a  negro  came  over  or  became  a  Christian,  he 
was  emancipated,  but  no  ground  in  law ;  that  he  and 


168  LAW  OF  NEGRO   SLAVERY. 

Lord  Talbot,  when  Attorney  and  Solicitor  General,  were 
of  opinion  that  no  such  claim  for  freedom  was  valid  ; 
that  though  the  Statute  of  Tenures  had  abolished  vil- 
lains regardant  to  a  manor,  yet  he  did  conceive  hut  that 
a  man  might  still  become  a  villain  in  gross  by  confessing 
himself  such  in  open  court.  We  are  so  well  agreed  that 
we  think  there  is  no  occasion  of  having  it  argued,  as  I 
intimated  an  intention  at  first,  before  all  the  Judges,  as 
is  usual,  for  obvious  reasons,  on  a  return  to  a  habeas 
corpus;  the  only  question  before  us  is,  whether  the 
cause  on  the  return  is  sufficient  ?  If  it  is,  the  negro 
must  be  remanded ;  if  it  ia  not,  he  must  be  discharged. 
Accordingly,  the  return  states  that  the  slave  departed 
and  refused  to  serve,  whereupon  he  was  kept  to  be  sold 
abroad.  So  high  an  act  of  dominion  must  be  recognized 
by  the  law  of  the  country  where  it  is  used.  The  power 
of  a  master  over  his  slave  has  been  extremely  different 
in  different  countries.  The  state  of  slavery  is  of  such  a 
nature  that  it  is  incapable  of  being  introduced  on  any 
reasons,  moral  or  political,  but  only  positive  law,  which 
preserves  its  force  long  after  the  reasons  occasion,  and 
time  itself  from  whence  it  was  created,  is  erased  from 
memory.  It  is  so  odious  that  nothing  can  be  suffered  to 
support  it  but  positive  law.  Whatever  inconveniences, 
therefore,  may  follow  from  a  decision,  I  cannot  say  this 
case  is  allowed  or  approved  by  the  law  of  England,  and 
therefore  the  black  must  be  discharged. 

§  184.  This  decision  has  been  given  at  length  for 
several  reasons,  besides  the  fact  of  its  being  the  lead- 
ing case  upon  which  many  subsequent  rulings  have 
been  made.  One  of  those  reasons  is,  that  many  ex- 
pressions and  opinions  have  been  attributed  to  Lord 
Mansfield,  which  are  nowhere  included  in  or  in- 
ferable from  his  opinion,  but  which  have  been 
taken  from  the  arguments  of  counsel,  especially  that 
of  Mr.  Hargrave,  written  out  long  after  the  deci- 
sion, and  which  it  is  not  pretended  were  ever  deli- 
vered upon  the  hearing.1  Thus,  even  Lord  Camp- 

1  See  note  to  page  23 ;  20  Howell's  State  Trials. 


SLAVES    ESCAPING   INTO    OTHER   STATES.  169 

bell  has  reported  Lord  Mansfield  as  having  said  that 
"  the  air  of  England  has  long  been  too  pure  for  a 
slave  to  breathe,"  and  that  "  villanage  had  ceased  in 
England  and  could  not  be  revived,"1  none  of  which 
appears  in  this  report,  and  which  we  have  the  au- 
thority of  Lord  Mansfield  for  asserting  that  he  never 
said.  For,  in  a  case  arising  thirteen  years  thereafter, 
he  stated  that  the  decision  "  went  no  farther  than 
that  the  master  cannot  by  force  compel  the  slave  to 
go  out  of  the  kingdom," — and  in  the  same  case  de- 
cided, that  "  villains  in  gross  may,  in  point  of  law, 
exist  at  that  day"  (1785)  .2 

§  185.  Before  examining  minutely  the  decision 
itself  it  is  worthy  of  remark,  that  the  report,  as  well 
as  cotemporaneous  history  show,  that  there  was  a 
great  deal  of  public  feeling  and  excitement  created 
by  the  investigation  of  the  case.  This  is  evidenced 

'  Lives  of  Chief  Justices,  vol.  ii,  320  (Amer.  Ed.).  Lord  Camp- 
bell gives  a  decision  at  length  of  Lord  Mansfield's,  and  refers,  as 
his  authority,  to  20  Howell's  State  Trials ;  not  one  word  of  which 
will  be  found  in  the  report  referred  to.  The  report  of  Lord  Camp- 
bell, moreover,  is  entirely  inconsistent  with  the  whole  bearing  and 
manner  of  Lord  Mansfield  in  this  case.  His  is  a  polished,  firm, 
bold,  literary  production,  closing  with  the  Latin  quotation,  "Quam- 
vis  ille  niger,  quamvis  tu  candidus  esses."  Lord  Mansfield's  is  a 
vacillating,  doubting,  irregular,  disjointed  effusion,  unworthy  of  his 
greatness.  For  fear  that  I  did  Lord  Campbell  injustice,  I  addressed 
him  a  letter  requesting  his  authority  for  this  decision.  In  reply  to 
this,  he  says,  in  a  courteous  note,  dated  Aug.  27th,  1855,  "  I  am  not 
able  to  refer  you  to  any  printed  authority  for  the  words  of  the 
judgment  of  Lord  Mansfield,  in  Somersett's  case,  as  I  have  given 
it.  It  agrees,  in  substance,  with  the  printed  reports,  and  I  have 
every  reason  to  believe  that  it  is  quite  correct." 

3  Rex  v.  Inhabitants  of  Thames  Ditton,  3  Douglas,  300  (26 
E.  C.  L.  R.  367). 


170  LAW  OF  NEGRO    SLAVERY. 

by  the  report  in  many  instances.  The  indecorous 
interruption  of  the  Court  by  a  bystander,  while  de- 
livering its  judgment  on  the  first  argument.  The 
fact  that  the  counsel  for  the  respondent  acknow- 
ledged it  to  be  his  "  misfortune  to  address  an  au- 
dience, the  greater  part  of  which  he  feared  were 
prejudiced  the  other  way.  That  he  found  it  neces- 
sary to  disclaim  intimating  a  wish  in  favor  of  slavery 
by  any  means,"  and  to  defend  his  appearance  by  re- 
ferring to  his  "  duty  to  maintain  those  arguments 
which  are  most  useful  to  Captain  Knowles ;"  and 
that  in  concluding  his  argument  he  was  weak  enough 
to  forget  the  Court  and  address  the  audience,  and 
after  making  his  apologies,  to  express  the  "  hope,  that 
he  should  not  suffer  in  the  opinion  of  those  whose 
honest  passions  are  fired  by  the  name  of  slavery ;" 
and  the  farther  hope,  "  that  he  had  not  transgressed 
his  duty  to  humanity."1  The  fact  of  the  inflamma- 
tory character  of  the  arguments  for  the  negro,  and 
the  still  more  pregnant  fact,  the  vacillating,  doubt- 
ing, unusual,  and  it  might  be  truly  added,  discredit- 
able manner  in  which  the  opinion  of  the  Court  was 
delivered.8  All  of  these  facts,  apparent  upon  the 
face  of  the  report,  show  that  the  public  feeling  was 
oppressive  to  the  counsel,  and  had  its  influence  upon 
the  Court.  Contemporaneous  history  confirms  this 
inference,  the  exciting  questions  of  abolition  of  the 

1  Argument  of  Mr.  Dunning,  20  Howell's  State  Trials,  71-75. 

3  This  fact  did  not  escape  attention  at  the  time.  The  decision  was 
declared  to  be  a  "delphic  ambiguity,"  and  the  question  left  in 
"  grand  uncertainty."  Pamphlets  were  written,  pro  and  con,  to 
explain  and  to  attack.  See  Just  Limitation  of  Slavery,  by  Gran- 
ville  Sharp,  and  Appendix,  Nos.  8  and  9. 


SLAVES    ESCAPING   INTO    OTHER   STATES.  171 

slave-trade,  and  West  India  emancipation  being  just 
then  taking  hold  of  the  public  mind  and  conscience, 
and  "  Wilkes  and  Liberty"  being  the  popular  tocsin. 
The  fact  that  Dr.  Samuel  Johnson,  the  despot  over 
the  literary  world  of  that  day,  prepared  an  argu- 
ment upon  this  question,  to  be  used  in  the  case  of 
Knight  and  Wedderburn,  in  the  Scotch  Courts, 
almost  cotemporaneously  with  this  case,  is  confir- 
matory of  this  opinion.1 

Without  desiring  in  any  manner  to  disparage  the 
deservedly  great  reputation  of  the  great  jurists  that 
delivered  this  opinion,  it  is  nevertheless  unques- 
tionably true,  and  so  admitted  by  his  biographers 
and  eulogists,  that  a  prominent  defect  in  his  charac- 
ter was  a  want  of  that  moral  courage  (that  my  Lord 
Coke  possessed  in  such  an  eminent  degree)  that  could 
withstand  every  influence  when  the  law  demanded 
his  obeisance." 

§  186.  The  arguments  of  the  counsel  in  this  case 
(written  out  and  reported  at  length  in  20  Howell's 
State  Trials),  go  far  to  sustain  the  opinion  expressed 
by  Chancellor  Kent,  of  their  ignorance  at  that  time 
upon  these  vexed  questions  of  International  Law. 
The  subject  of  the  Comity  of  Nations  is  never  men- 
tioned, eo  nomine,  by  either  of  them ;  and  the  prin- 
ciples of  that  comity  (the  only  ground  on  which  the 
master's  rights  could  be  supported),  are  never  even 
obscurely  alluded  to  by  the  counsel  representing 
his  interests.  On  the  contrary,  Mr.  Dunning,  the 
leading  counsel  for  the  master,  yielded  the  whole 

«  2  Boswell's  Life  of  Johnson,  132. 

•  Campbell's  Lives  of  the  Chief  Justices,  vol.  ii,  p.  437  (Amer. 
Ed.). 


172  LAW  OF   NEGRO   SLAVERY. 

question,  when  he  admitted,  in  his  argument,  the 
broad  proposition,  that  "the  municipal  regulations 
of  one  country  are  not  binding  on  another"  (p.  73). 
In  fact,  the  only  allusion  to  the  doctrine  of  comity, 
deserving  the  name,  made  on  either  side,  seems  to 
be  an  afterthought  of  Mr.  Hargrave,  in  writing  out 
his  argument  for  publication,  where  he  speaks  of 
the  lex  loci  (p.  60)  ;  and  then  his  application  of  the 
doctrine  shows  either  strange  ignorance,  or  a  wanton 
perversion.  And  this  was  evidently  not  mentioned 
on  the  hearing,  as  his  view  is  neither  met  by  the 
opposing  counsel,  nor  alluded  to  by  the  Court.  It 
is  true  that  it  is  said  (p.  71),  that  "the  Court  ap- 
proved Mr.  Alleyne's  opinion  of  the  distinction  how 
far  municipal  laws  were  to  be  regarded ;"  but  Mr. 
Alleyne's  argument  shows  no  distinction  to  have 
been  drawn  by  him.  He  says  (p.  68),  "Slavery  is 
not  a  natural,  it  is  a  municipal  relation ;  an  institu- 
tion, therefore,  confined  to  certain  places,  and  neces- 
sarily dropped  by  passage  into  a  country  where 
such  municipal  regulations  do  not  exist."  If  this 
be  the  distinction  to  which  the  Court  alludes,  they 
place  themselves  very  much  in  the  category  of  the 
counsel. 

§  187.  The  truth  is,  the  arguments  show — what 
the  decision  of  the  Court  clearly  demonstrates — that 
the  case  was  placed  upon  an  entirely  false  issue,  viz., 
whether  or  not  African  slavery  could  be  introduced 
into  England.  The  justly  celebrated  argument  of 
Mr.  Hargrave  is  all  directed  to  show  that  "  the  law 
of  England  will  not  admit  of  a  new  slavery"  (p.  35). 
The  argument  of  the  counsel  for  the  master  strove 
to  demonstrate  that  the  law  of  England  recognized 


SLAVES  ESCAPING  INTO  OTHER  STATES.      173 

slavery  in  villanage;  and  that,  at  most,  it  would 
modify  the  state  of  absolute  slavery  to  that  of  ser- 
vitude for  life.  The  true  ground,  that  the  law  of 
the  domicile  determined  the  status  of  the  slave,  and 
that  the  English  Courts,  through  comity,  were  bound 
to  enforce  the  municipal  law  of  that  domicile,  when 
it  did  not  interfere  with  the  policy  or  become  preju- 
dicial to  the  interests  of  England,  was  never  sug- 
gested to  the  consideration  of  the  court.1 

§  188.  When  we  come  to  examine  the  decision  of 
the  Court,  we  find  it  equally  wide  of  the  mark. 
Lord  Mansfield  seems  to  have  arrived  almost  in 
view  of  the  point,  when  he  said,  "  The  now  ques- 
tion is,  whether  any  dominion,  authority,  or  coercion, 
can  be  exercised,  in  this  country,  on  a  slave,  accord- 
ing to  the  American  laws  ?  The  difficulty  of  adopt- 
ing the  relation,  without  adopting  it  in  all  its  con- 
sequences, is  indeed  extreme;  yet  many  of  those 
consequences  are  absolutely  contrary  to  the  muni- 
cipal law  of  England.  We  have  no  authority  to 
regulate  the  conditions  in  which  law  shall  operate." 
His  great  mind,  unaided,  seems  to  have  almost 
borne  him  to  the  true  solution;  one  step  farther, 
and  there  would  have  been  no  difficulty ;  the  step 
subsequently  taken  by  Lord  Stowell,  when  he  de- 
clared that  in  cases  coming  under  the  Comity  of 
Nations,  the  business  of  the  English  law  was  sim- 
ply to  bring  the  parties  to  a  hearing;  and  that 

1  Lord  Stowell  says,  "  The  arguments  of  counsel,  in  that  decisive 
case  of  Somersett,  do  not  go  farther  than  to  the  extinction  of  slavery 
in  England,  as  unsuitable  to  the  genius  of  the  country,  and  the 
modes  of  enforcement."  Case  of  Slave  Grace,  2  Hagg.  Admr. 
109. 


174  LAW  OF  NEGRO   SLAVERY. 

effected,  she  stepped  back,  and  left  the  decision  to 
the  municipal  law  of  the  foreign  state.  But  Lord 
Mansfield  seems  to  have  sunk  under  the  oppression 
of  the  difficulties,  and,  instead  of  taking  the  other 
step,  goes  rambling  off  in  a  dislocated  jargon,  about 
"  fiat  justitia,  mat  coelum  ;"  "50?.  a  head  not  a  high 
price ;"  suggestions  to  Mr.  Stewart  to  emancipate  his 
negro,  in  order  to  relieve  the  Court,  &c.  &c.,  which, 
taken  altogether,  is  by  no  means  calculated  to  ad- 
vance his  fame.1 

§  189.  The  final  judgment  of  the  Court,  delivered 
some  five  months  thereafter,  shows  clearly  what  has 
been  formerly  stated,  that  the  case  was  decided  upon 
a  false  issue,  viz.,  whether  African  slavery  would  be 
lawful  under  the  municipal  law  of  England.  Say 
the  Court,  "  The  state  of  slavery  is  of  such  a  nature 
that  it  is  incapable  of  being  introduced  on  any 
reasons,  moral  or  political,  but  only  by  positive  law." 
"  Whatever  inconveniences,  therefore,  may  follow 
from  the  decision,  I  cannot  say  this  case  is  allowed 
or  approved  by  the  law  of  England ;  and,  therefore, 
the  black  must  be  discharged."  It  would  seem  un- 
questionable, that  this  decision  denied  the  right  of 
introducing  a  slave  animo  remanendi.  Yet  Lord 
Mansfield,  in  a  subsequent  case,  where  a  slave  was 
introduced  and  retained  in  England,  declared  that 
this  "determination  went  no  farther  than  that  the 
master  cannot,  by  force,  compel  the  slave  to  go  out 

1  Since  penning  this  paragraph,  I  have  been  pleased  to  see  that 
this  decision  made  a  similar  impression  upon  the  minds  of  the  pro- 
fession soon  after  its  delivery.  See  Argument  of  Luther  Martin, 
Attorney-General  of  Maryland,  in  1799,  in  case  of  Mahoney  v. 
Abhton,  4  Bar.  &  McH.  320,  321. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      175 

of  the  kingdom."1  Barrington,  in  his  Observations 
on  Statutes,  published  shortly  after  the  decision, 
refers  to  this  case,  and  corroborates  the  remarks  just 
quoted  of  Lord  Mansfield.  He  says,  "There  hath 
lately,  indeed,  been  a  celebrated  judgment  in  the 
Court  of  King's  Bench,  with  regard  to  a  black  ser- 
vant ;  but  I  conceive  that  the  only  point  determined 
in  that  case  was,  that  a  master  hath  not  a  right  to 
send  such  a  slave  out  of  the  kingdom,  in  order  that  he 
may  be  sold."2 

§  190.  Lord  Stowell,  in  the  case  of  the  slave 
Grace,  decided  in  1827  (2  Hagg.  Adm.  Rep.  94), 
has  reviewed,  at  some  length,  the  decision  in  Somer- 
sett's  case ;  and  while  he  disclaims  the'  "presumption 
of  questioning  any  obiter  dictum  that  fell  from  that 
great  man"  (Lord  Mansfield),  he  combats,  and  suc- 
cessfully, the  only  foundation  upon  which  the  deci- 
sion is  based,  viz.,  that  "  slavery  cannot  be  esta- 
blished without  positive  law."  He  says  (p.  107), 
"  I  trust,  I  do  not  depart  from  the  modesty  that 
belongs  to  my  situation,  and  I  hope  to  my  character, 
when  I  observe  that  ancient  custom  is  generally  re- 
cognized as  a  just  foundation  of  all  law.  That  vil- 
lanage,  which  is  said  to  be  the  prototype  of  slavery, 
had  no  other  origin  than  ancient  custom;  that  a 
great  part  of  the  common  law  itself,  in  all  its  rela- 
tions, has  little  other  foundation  than  the  same 
custom."  Of  the  judgment  in  the  case,  he  says  (p. 
109),  "There  is  hardly  anything  else  that  is  ex- 

1  Rex  v.  Inhabitants  of  Thames  Ditton,  4  Douglas,  300  (26 
E.  C.  L.  R.  367). 

•  The  italics  are  his  own.  Observ.  on  Statutes  1  Ric.  II,  p.  312 
(5th  Edition,  1796). 


176  LAW  OF  NEGRO   SLAVERY. 

pressed,  save  several  well-merited  civilities  to  the 
gentlemen  of  the  bar;  and  some  expressions  of  con- 
tempt for  the  danger  and  jealousy  that  might  be 
encountered,  but  of  which  none  ever  appear  to  have 
occasioned  any  reasonable  alarm."  Of  the  very 
favorite  expression  of  later  days,  "  that  the  air  of 
England  was  too  pure  for  a  slave  to  breathe,"  Lord 
Stowell  says,  with  well-deserved  sarcasm  (p.  109), 
"  How  far  this  air  was  useful  for  the  common  pur- 
poses of  respiration,  during  the  many  centuries  in 
which  the  two  systems  of  villanage  maintained  their 
sway  in  this  country,  history  has  not  recorded." 

§  191.  And  as  conclusive  proof  that  this  case 
went  no  farther  than  Lord  Mansfield  declared  in 
the  case  in  Douglas,  is  the  fact,  that  for  fifty  years 
after  the  decision  in  Somersett's  case,  slaves  were 
continually  brought  from  the  West  Indies  to  Eng- 
land, the  masters  relying  upon  their  voluntary 
return.  Says  Lord  Stowell,  in  the  case  cited,  p.  112, 
"  Black  seamen  have,  ever  since,  navigated  West 
India  ships  to  this  island,  but  we  have  not  heard  of 
other  Somersetts,  nor  has  the  public  been  much 
gratified  with  complaints  of  their  desertion."  "And 
what  excuse  is  to  be  offered  for  Lord  Mansfield,  who 
long  survived  the  change  of  the  law  which  he  had 
made,  and  yet  never  interposed  in  the  slightest 
manner  to  correct  the  total  misapprehension,  if  it 
is  so  to  be  considered,  of  the  law  which  he  himself 
had  introduced."  (p.  114.) 

§  192.  Having  examined  the  decision  of  the  Court 
as  made,  let  us  view  the  case  made  by  the  return,  in 
the  light  of  those  rules  which  we  have  deduced  from 
the  principles  of  international  law  governing  these 


SLAVES  ESCAPING  INTO  OTHER  STATES.      177 

questions.  It  appears  that  the  master  had  been  re- 
siding two  years  in  England  with  this  slave,  "  for 
the  purpose  of  transacting  certain  business,"  and 
"  with  the  intention  of  returning  to  America  at  the 
close  of  that  business."  The  nature  of  that  busi- 
ness, and  the  probable  duration  of  the  master's  stay, 
are  not  stated.  The  farther  fact  appears,  upon  the 
hearing,  that  near  15,000  slaves  were  at  that  time, 
under  various  pretexts,  introduced  into  England.  It 
is  a  doubtful  question  whether,  under  such  circum- 
stances and  with  so  vague  a  return,  the  Court  would 
not  have  been  justified  in  the  exercise  of  its  dis- 
cretion, in  "refusing  to  extend  the  principle  of 
comity."1 

§  193.  The  judgment  of  the  Court,  upon  the  case 
made,  therefore,  does  not  necessarily  contravene  the 
principles  we  have  laid  down.  The  reasons  given 
by  the  Court  for  that  judgment,  we  dissent  from. 
Those  reasons,  not  the  case,  have  been  the  fruitful 
source  of  erroneous  decisions,  as  our  farther  review 
of  the  cases  will  abundantly  show. 

§  194.  In  the  case  of  Williams  v.  Brown,2  decided 
in  1802,  the  question  incidentally  arose  as  to  the  con- 
dition of  a  fugitive  slave,  who,  having  enjoyed  freedom 
in  England,  voluntarily  returned  to  the  West  Indies, 
whence  he  had  fled.  The  Court  of  Common  Pleas 
were  unanimous  in  the  opinion,  that  his  state  of  sla- 
very existed  upon  his  return.  Which  decision  was 

'  This  appears  to  be  the  view  of  this  case  taken  by  Lord  Stowell, 
in  a  letter  to  Judge  Story,  and  which  view  was  fully  approved  by 
the  latter.  Life  and  Letters  of  Story,  vol.  i,  555,  558. 

a  3  Bos.  &  Pul.  69. 

12 


178  LAW  OF   NEGRO   SLAVERY. 

affirmed,  as  we  shall  see,  upon  elaborate  argument,  in 
the  subsequent  case  of  the  slave  Grace. 

§  195.  The  next  case  in  England,  worthy  of  at- 
tention, is  that  of  Forbes  v.  Cochrane  &  Cockburn 
(decided  in  1824). *  The  question  made  there,  and 
decided  by  the  Court,  does  not,  in  any  manner,  affect 
the  point  under  review ;  and  Bay  ley,  J.,  who  de- 
livers the  judgment  of  the  Court,  expressly  waives 
"  giving  any  opinion"  upon  the  question,  whether 
"  a  slave,  the  instant  he  leaves  his  master's  planta- 
tion, and  gets  upon  other  land  where  slavery  is  not 
tolerated,  becomes,  ex  necessitate,  to  all  intents  and 
purposes,  a  freeman."  Nor  would  it  be  necessary  to 
refer  to  the  case,  except  that  some  of  the  Judges,  in 
concurring  in  the  judgment,  had  taken  occasion  to 
throw  out  dicta  that  have  been  since  referred  to  as 
law.  Let  us  examine  these  dicta. 

Holroyd,  J.,  asserts  broadly,  that  "  the  moment  a 
slave  puts  his  foot  upon  the  shores  of  this  country, 
his  slavery  is  at  an  end."  The  reason  is  given  thus : 
"  He  ceases  to  be  a  slave  in  England,  only  because 
there  is  no  law  which  sanctions  his  detention  in  sla- 
very." The  reason  given  is  not  true.  There  is  a 
law  in  England  which  sanctions  his  detention.  That 
law  is  the  municipal  law  of  the  domicile  of  the  mas- 
ter, and  which,  by  comity,  the  English  Court  is 
bound  to  enforce,  under  certain  circumstances.  The 
difficulty  with  Justice  Holroyd  is,  that  he  does  not 
discriminate  between  the  cases  of  the  introduction 
of  slavery  as  a  permanent  institution,  and  the  intro- 

1  2  Barnewall  &  Cresswell,  448  (9  E.  C.  L.  R.  138-150). 


SLAVES  ESCAPING  INTO  OTHER  STATES.      179 

duction  of  a  slave  for  a  temporary  purpose.  Best,  J., 
seems  to  have  worked  himself  into  a  passion  before 
he  had  an  opportunity  of  delivering  his  opinion,  and 
in  the  outset,  gives  notice  that  his  "  feelings  are  ex- 
cited," and  may  "  betray  him  into  some  warmth  of 
expression." 

This  warning  would  be  a  sufficient  justification  to 
the  cool  inquirer  after  truth  for  passing  by  his  opi- 
nion, but  proper  respect  suggests  a  moment's  exami- 
nation. He  speaks  of  slavery  as  "  a  crime  ;"  denies 
that  "  in  any  case  an  action  has  been  held  to  be 
maintainable  in  the  municipal  Courts  of  England, 
founded  upon  a  right  arising  out  of  slavery ;'"  de- 
clares the  law  of  Florida  to  be  "  anti-christian"  and 
"  contrary  to  the  law  of  God,"  and  consequently 
should  not  be  recognized,  and  concludes  by  declaring 
that  it  was  a  maxim,  that  the  comity  of  nations 
"  cannot  prevail  in  any  case  where  it  violates  the 
law  of  our  own  country,  the  law  of  nature,  or  the 
law  of  God.'1  If  it  were  necessary,  oyer  might  be 
claimed  of  this  maxim,  as  to  its  latter  branch,  and 
Justice  Best  would  be  probably  puzzled  to  produce 
it.  However,  the  necessity  does  not  exist,  for  Afri- 
can slavery  violates  neither  the  one  nor  the  other. 

§  196.  In  the  case  of  the  slave  Grace,  which  sub- 
sequently arose  before  Lord  Stowell  in  the  Admiralty 
Court,  the  question  was,  whether  upon  the  return  of 
a  slave  to  the  slaveholding  state,  the  master  could 

1  In  addition  to  the  cases  referred  to  by  us,  there  was  before  the 
Court,  at  this  time,  the  then  recent  case  of  Madrazzo  v.  Willes,  3 
B.  &  A.  353,  where  Justice  Best  himself  gave  judgment  for  the 
plaintiff  for  18,180Z.,  the  value  of  a  cargo  of  slaves. 


180  LAW  OF   NEGRO   SLAVERY. 

assert  his  authority  over  her,  or  whether  she  was 
free  ?  The  decision  of  Lord  Stowell  maintained  the 
authority  of  the  master,  holding  that  the  Somersett 
case  did  not  decide  that  the  removal  to  a  non-slave- 
holding  state  worked  an  emancipation,  but  simply 
that  the  courts  of  England  would  not  lend  their  aid 
to  enforce  his  rights.1 

In  this  case,  Lord  Stowell  enters  upon  the  exami- 
nation of  the  question  with  great  candor.  He  un- 
hesitatingly affirms  that  African  slavery  not  only 
existed  in  fact,  but  was  recognized  by  the  courts 
prior  to  the  case  of  Somersett.  He  refers  particu- 
larly to  the  judgment  of  Lord  Chancellor  Hard- 
wicke,  in  1749,  sustaining  the  counsel  he  had  pre- 
viously given  the  colonists  as  Sir  Philip  Yorke,  and 
says  that  this  judgment  was  reversed  by  Lord  Mans- 
field. He  speaks  of  Lord  Mansfield's  decision  as  "  a 
change  of  the  law,"  and  as  law  which  Lord  Mansfield 
"  himself  had  introduced."2 

§  197.  Such  are  the  English  authorities.  Those 
prior  to  Somersett's  case,  would  seem  to  recognize 
slavery  as  existing  under  the  municipal  law  of  Eng- 
land. The  dicta  of  some  of  the  Judges  in  the  later 
cases  go  to  the  opposite  extreme,  while  that  of  Lord 
Stowell  sustains  it  in  full.  At  the  date  of  the 
former  there  seems  to  have  been  but  little  informa- 
tion on  the  peculiar  questions  of  international  law. 
At  the  date  of  the  latter,  there  seems  to  have  been 
much  excitement  and  zeal  on  the  subject  of  slavery 
and  the  slave-trade,  which  the  judicial  ermine  could 

1  2  Hagg.  Adm.  Rep.  94.  a  Pages  109,  114. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      181 

not  exclude  from  the  courts  of  justice.1  About  them 
all  we  may  remark,  that  in  no  single  case  was  the 
question  made  and  decided  as  to  the  extent  to  which 
the  comity  of  nations  required  the  enforcement  of 
the  foreign  law  in  the  courts  of  England. 

1  Lord  Stowell,  even  in  a  letter  to  Judge  Story,  glories  in  the 
appellation  of  "an  abolitionist."  Life  and  Letters  of  Story,  vol.  i, 
555. 


CHAPTER  X. 

SAME  SUBJECT  CONTINUED. — HOW  FAR  THE  QUESTION 
IS  AFFECTED  BY  OUR  FORM  OF  GOVERNMENT  AND 
CONSTITUTION. 

§  198.  WE  have  thus  examined  the  opinions  of 
foreign  jurists  and  the  adjudged  cases  in  foreign 
courts,  to  see  whether  their  decisions  controvert  the 
correctness  of  those  conclusions  to  which  upon  prin- 
ciple we  arrived.1  We  must  think  that  to  the  honest 

1  Ante,  §  174.  Through  communications  in  the  public  journals, 
I  see  the  decision  of  a  cause  very  lately  (1856),  in  the  highest 
judicial  tribunal  of  Prussia,  where  the  question  was  distinctly  made 
and  ruled  as  I  lay  down  the  law.  Not  having  an  authoritative 
report,  I  cannot  insert  it  in  the  text.  "  The  case  was  that  of  Dr. 
Ritter,  a  citizen  of  Brazil,  against  one  Marcinello,  his  slave,  whom 
he  had  brought  to  Berlin,  where  he  told  him  he  would  simply  treat 
him  as  a  servant,  but  on  his  return  home  he  should  expect  him  to  re- 
enter  on  his  former  condition.  The  slave,  however,  left  his  master, 
and  instituted  a  suit  against  him,  praying  that  he  be  called  upon  to 
prove  his  property  within  a  given  period,  or  be  forever  debarred,  &c. 
The  local  tribunal  of  Berlin  gave  judgment  in  favor  of  the  slave,  but 
the  Court  of  Appeals  reversed  this  judgment,  and  the  Supreme  Court 
of  Justice  confirmed  the  judgment  of  the  Court  of  Appeals.  Mr. 
Grrund  also  adds  that,  in  the  written  reasons  for  this  decision,  which 
are  always  furnished  by  the  Judges  in  Germany,  the  Court  held  that 
Dr.  Ritter  had  good  cause  to  claim  Marcinello  as  his  slave;  it  being 
proved  that  the  relation  of  master  and  slave  subsisted,  and  still 


SLAVES    ESCAPING    INTO    OTHER    STATES.  183 

candid  mind  those  conclusions  remain,  if  not  sup- 
ported, at  least  uncontradicted,  by  the  authorities. 

§  199.  If  these  are  the  principles  upon  which  the 
slaveholder's  rights  would  be  adjudicated  in  the 
courts  of  foreign  independent  nations,  should  the 
same  principles  determine  the  relative  rights  of 
master  and  slave  within  the  States  of  the  Union  ? 
And  is  the  obligation  to  observe  this  comity  greater 
or  less  among  the  States  of  this  Union,  than  among 
totally  independent  States  ?  These  questions  de- 
mand now  our  consideration. 

§  200.  The  very  name  "  Comitas  inter  communi- 
tates"  exhibits  the  foundation  of  these  principles.  It 
is  comity,  courtesy,  founded  upon  mutual  respect,  and 
promotive  of  mutual  interest,  the  offspring  of  com- 
merce and  enlightenment,  the  handmaid  of  justice 
and  peace.  Surely  it  does  not  require  an  argument 
to  prove  that  there  is  nothing  in  the  nature  of  the 
union  of  these  States,  which  weakens  those  bonds 
that  bind  together  even  independent  States. 

§  201.  On  the  contrary,  the  obligation  to  re- 
subsists  lawfully  in  Brazil,  the  domicile  of  both  the  plaintiff  and 
defendant;  that  by  the  plaintiff's  own  confession,  defendant  had 
bought  him  for  a  certain  sum  of  money;  that  it  was  proved  by  a 
competent  witness,  a  merchant  by  the  name  of  Ree,  that  Marci- 
nello,  while  at  Rio  Janeiro,  lived  in  the  defendant's  house  as  a  slave, 
using  the  language  and  wearing  the  badge  of  servitude  (going 
barefooted),  by  which  slaves  in  Brazil  are  recognized;  and,  finally, 
because  Marcinello's  name  occurs  in  the  passport  as  a  slave,  belong- 
ing to  the  defendant.  The  relations  between  master  and  servant 
are  regulated  by  the  laws  of  the  country  where  both  are  domici- 
liated,  and  a  promise  on  the  part  of  the  master,  within  a  certain 
limited  time  and  space  not  to  use  his  rights  over  his  slave  to  the 
fullest  extent,  is  not  tantamount  to  their  relinquishment." 


184  LAW  OF  NEGRO   SLAVERY. 

spect  and  observe  this  comity,  is  greater  upon  the 
Courts  of  the  States  of  this  Union,  than  upon  the 
Courts  of  independent  States.  The  very  Union 
itself  was  framed  to  establish  justice,  insure  domes- 
tic tranquillity,  and  promote  the  general  welfare  of 
the  people  of  these  United  States.  If,  then,  we 
mete  out  to  each  other  no  farther  privileges,  no 
greater  courtesy  than  if  no  bond  of  union  existed, 
"  what  thanks  have  we  ?  Do  not  the  publicans  the 
same?"  Wherein  is  this  Union  made  "more  per- 
fect," if  it  leaves  the  courts  of  the  several  States 
regulating  the  rights  of  the  sister  States,  by  the 
scanty  courtesy  of  foreign  tribunals?  So  long  as 
this  Union  exists,  there  is  but  one  body,  though 
many  members.  The  States  are  not  foreign  to  each 
other,  for  every  purpose ;  and  more  especially  in  the 
application  of  those  principles  of  comity,  which  are 
calculated  so  much  to  "insure  domestic  tranquillity." 
The  language  of  Judge  Lockwood1  is  as  praiseworthy 
for  its  patriotism,  as  it  is  remarkable  for  its  clear 
legal  conclusions.  "  The  relations  we  sustain  to  our 
sister  States,  also,  furnish  strong  reasons  why  the 
law  of  comity  should  be  expanded,  so  as  to  meet 
the  exigencies  arising  out  of  that  relation.  What, 
then,  are  the  relations  we  sustain  to  other  States, 
which  ought  to  affect  our  public  policy  towards 
them?  They  are  not  foreign  States.  We  are 
bound  up  with  them  by  the  Constitution  of  the 
United  States  into  a  Union,  upon  the  preservation 
of  which  no  one  can  doubt  that  our  own  peace  and 
welfare  greatly  depend.  Other  nations  may  cherish 

1  Willard  v.  The  People,  4  Scammon,  475. 


SLAVES   ESCAPING   INTO    OTHER   STATES.  185 

friendly  relations  with  each  other,  and  endeavor  to 
promote  alliances  and  frequent  intercourse,  from 
fear  of  foreign  war,  or  a  desire  of  commercial  pros- 
perity. But  to  us,  these  relations  and  this  in- 
tercourse, have  a  value  and  importance  which  are 
inestimable.  They  are  the  grounds  of  safety  for 
our  domestic  peace,  and  for  our  hopes  of  the  con- 
tinuation of  the  happy  government  under  which 
we  live.  Whatever  injures  one  State,  injures  the 
others.  It  is,  consequently,  our  duty  to  consult  the 
good  of  all  the  States,  and  so  to  frame  and  admi- 
nister our  laws,  that  we  give  our  sister  States  no 
real  cause  of  offence.  We  ought  to  do  them  all  the 
kind  offices  in  our  power,  consistently  with  our  duty 
to  ourselves.  Thus  will  be  produced  that  concord, 
that  union  of  affection  and  interest  among  the  States, 
which  may  prove  an  enduring  cement  to  that  happy 
and  glorious  Union,  upon  the  continuation  of  which 
our  hopes  of  domestic  peace  and  rational  freedom  so 
eminently  depend.  By  the  law  of  nations,  it 
would  be  considered  just  cause  of  complaint,  if  we 
should  arbitrarily  refuse  to  the  citizens  of  foreign 
nations  at  peace  with  us,  permission  to  pass  through 
our  territories  with  their  property.  If  this  be  so, 
as  regards  the  citizens  of  foreign  nations,  how  much 
greater  propriety  does  there  exist  that  we  should 
extend  this  boon,  if  boon  it  be,  to  our  fellow-citizens, 
who  are  also  our  friends,  our  neighbors,  our  relations. 
That  our  denial  to  the  people  of  our  sister  States  to 
have  the  right  of  passage  for  themselves  and  their 
slaves,  would  inflict  on  them  a  most  serious  injury, 
cannot  be  doubted.  The  bitterness  which  usually 
characterizes  border  animosities  admonishes  us  of 


186  LAW  OF   NEGRO    SLAVERY. 

the  propriety  of  cultivating,  by  every  just  means  in 
our  power,  that  social  intercourse  with  our  neighbors 
which  will  be  productive  of  mutual  esteem  and  good 
will.  Should  we  refuse  them  the  privilege  of  taking 
their  slaves  through  our  State,  would  there  not  be 
danger  that  such  refusal  would  engender  feelings,  on 
their  part,  not  favorable  to  a  continuance  of  our 
happy  union  ?  Are  there  reasons  of  sufficient  mag- 
nitude to  induce  us  to  risk  such  consequences?  I 
think  not.  Our  interest,  our  duty,  our  love  to  our 
whole  country,  conspire  to  prove  the  propriety  of 
allowing  our  fellow-citizens  of  our  sister  States,  the 
right  to  travel  through  this  State,  either  as  emigrants 
or  travellers,  with  their  slaves,  unless  serious  injury 
will  result  to  ourselves  by  giving  such  permission. 
How  injury  can  result  to  the  people  of  this  State, 
by  such  a  permission,  I  am  entirely  at  a  loss  to  con- 
ceive. On  the  contrary,  it  might  be  shown  that  in 
many  instances  it  was  to  their  decided  advantage."' 
§  202.  This  general  view  is  confirmed  by  a  closer 
examination  of  our  frame  of  government.  A  refusal 
on  the  part  of  an  independent  nation  to  extend  to 
another  the  benefit  of  this  comity,  would  leave  to  the 
nation  thus  treated  the  alternatives,  either  to  reta- 
liate, through  her  own  courts,  or  to  cease  all  commer- 
cial intercourse  with  the  offending  nation ;  or,  if  the 
magnitude  of  the  case  justified  it,  to  declare  war  for 
this  denial  of  her  rights,  under  the  Law  of  Nations.1 
How  is  it  with  the  States  of  this  Union  ?  If  Mas- 

1  Such  wars  have  been  waged,  for  the  refusal  to  deliver  up  fugi- 
tive slaves.  Heineccius,  De  Prasscr.  &c.  Exr.  xxvi,  §  12,  citing 
Lehmann,  Chron.  Spir.  Lib.  VII,  cap.  Ixxi;  Hertius,  De  Horn: 
propr.  Sect,  iii,  §  10. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      187 

sachusetts  denies  to  Georgia  the  benefit  of  this 
comity,  what  alternatives  has  Georgia?  She  can- 
not cease  commercial  intercourse,  because,  under 
the  Constitution,  Congress  has  exclusive  control 
over  that  subject.  She  cannot  declare  war,  for  of 
that  power,  also,  is  she  divested  by  the  terms  of 
Union.  She  cannot  even  stipulate  by  treaty  for 
the  allowance  of  this  comity  to  her  citizens,  for,  by 
the  same  clause  (Sect.  X,  Art.  I),  is  she  prohibited 
from  entering  into  any  agreement  or  compact  with 
another  State.  The  poor,  miserable  alternative  of 
retaliating  through  her  own  courts,  is  all  that  is 
left  to  her — one  little  calculated  to  "secure  domestic 
tranquillity."  It  cannot  be  believed  that  the  wise 
framers  of  our  Constitution,  whose  foresight  and  pro- 
vidence amounted  almost  to  "  prophetic  ken,"  have 
left  so  fruitful  a  source  of  disturbance, — so  dangerous 
a  rock  of  offence,  without  some  principles  to  govern 
us  and  some  power  to  enforce.  For  every  other 
conceivable  cause  of  difficulty  between  the  States 
provision  is  made,  and  the  tribunals  pointed  out  by 
which  the  conflicting  rights  are  to  be  decided ;  and 
every  power  is  taken  away  from  the  States,  which, 
it  was  supposed,  could  be  used  for  the  purpose  of 
annoying  or  vexing  each  other.  Thus,  the  lay- 
ing of  tariffs  on  articles  brought  from  other  States, 
the  regulation  of  commerce  generally  between  the 
States,  the  keeping  a  standing  army,  or  ships  of 
war,  &c.,  are  all  prohibited  to  the  States.  And,  in 
other  cases,  where  prohibition  was  impossible,  but 
difficulties  might  arise,  the  duties  of  the  several 
States  are  clearly  defined; — such  as  the  cases  of 
fugitives  from  justice,  and  from  service,  the  privi- 


188  LAW  OF  NEGKO   SLAVERY. 

leges  of  citizens,  the  credit  given  to  judicial  proceed- 
ings, &c.  Under  this  view  of  the  Constitution  (with- 
out stopping  to  inquire  how  far  the  several  States 
have  yielded  any  portion  of  their  sovereignty),  the 
conclusion  is  inevitable,  that  the  spirit  of  this  com- 
pact of  Union  imposes  a  weighty  obligation  upon 
every  State  composing  it,  with  scrupulous  nicety  to 
extend  to  the  citizens  of  every  other  State,  the  full 
measure  of  their  rights  under  the  Comity  of  Nations.1 

§  203.  It  may  at  some  day  become  a  question  of 
great  practical  importance,  what  remedy  is  provided, 
if  any,  to  the  other  States,  for  the  enforcement  of 
this  comity  upon  a  State  disposed  to  disregard  this 
obligation.  For  instance,  if  one  State  should  enact 
that  while,  by  the  comity  of  nations,  her  courts  are 
bound  to  enforce  the  municipal  law  of  the  other 
States  in  certain  enumerated  cases ;  yet,  by  virtue 
of  her  sovereign  right  to  regulate  all  her  internal 
affairs,  she  enacts  that  her  courts  shall  thencefor- 
ward cease  to  respect  this  comity,  and  to  enforce 
this  law.  Are  the  other  States  remediless?  Can  it 
be  possible  that  the  rights  of  the  citizens  of  all  the 
other  States,  are  thus  placed  at  the  mercy  of  a  re- 
fractory State  ? 

§  204.  In  the  supposed  case,  the  issue  stands  thus : 
The  remaining  States  demand  of  the  offending  State, 
through  her  courts,  to  enforce  their  municipal  laws, 
in  those  cases  where,  by  the  comity  of  nations,  those 
laws  should  decide  the  rights  of  the  parties.  She 

1  See  3  Story  Comm.  on  Const.  §  1303 ;  Green  v.  Sarmiento,  1 
Peters  C.  C.  R.  78,  79 ;  Opinion  of  Livingston,  J.,  in  Mills  v. 
Duryee,  7  Cranch,  486. 


SLAVES    ESCAPING   INTO    OTHER   STATES.  189 

refuses  to  do  so.  The  other  States  cannot  declare 
war.  They  cannot  lay  a  tariff  on  her  productions. 
They  cannot  even  purchase  from  her  their  peace. 
They  can  look  only  to  the  Constitution,  and  the 
powers  granted  thereby,  for  redress.  Do  they  pro- 
vide for  the  case  ? 

§  205.  The  fourth  Article  of  the  Constitution  of 
the  United  States  seems  to  have  for  its  principal 
object  the  regulation  of  the  intercourse  of  the  several 
States  with  each  other.  The  first  and  second  sec- 
tions of  this  Article  are  exclusively  devoted  to  this 
object.  An  anxious  solicitude  is  evidenced  in  these 
sections  to  provide  for  every  possible  cause  of  diffi- 
culty between  the  several  States.  Prominent  and 
first  in  these  provisions  stands  this  section : 

"  Full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  pro- 
ceedings of  every  other  State.  And  the  Congress 
may,  by  general  laws,  prescribe  the  manner  in  which 
such  acts,  records,  and  proceedings,  shall  be  proved, 
and  tlie  effect  thereof" 

§  206.  That  the  words  "  public  acts"  refer  to  the 
laws  of  the  several  States,  is  admitted  by  all  com- 
mentators upon  this  clause.1  And  this  opinion  was 
acted  on  by  the  Congress  of  1790  (composed  partly 
of  the  men  who  framed  this  instrument),  when,  in 
the  act  passed  to  carry  out  this  section,  they  pro- 
vided for  the  authentication  of  the  acts  of  the  legis- 
latures.2 If  there  could  be  any  doubt  on  this  point, 

1  Story,  on  the  Constitution,  vol.  iii,  §  1298 ;  Bayard's  Exposi- 
tion of  the  Constitution,  120;  Sergeant's  Constitutional  Law,  386. 

2  Statutes  at  Large,  vol.  i,  p.  122;   see  U.  S.  v.  Amedy,  11 
Wheat.  407. 


190  LAW  OF  NEGRO   SLAVERY. 

the  history  of  the  clause  would  remove  it.  In  the 
original  draft  of  a  Constitution  reported  by  the  Com- 
mittee, the  words  were  inserted  in  full,  "  acts  of  the 
legislature/'1  and  was  so  agreed  to.  The  present 
verbiage  was  adopted  subsequently,  when  another 
more  important  alteration  was  made  in  the  clause. 
In  the  first  draft  it  read,  "  Full  faith  and  credit  shall 
be  given,  in  each  State,  to  the  acts  of  the  legisla- 
tures, and  to  the  records  and  judicial  proceedings  of 
the  courts  and  magistrates  of  every  other  State." 
No  power,  it  will  be  perceived,  was  given  to  Con- 
gress to  enforce  this  obligation  on  the  States.  The 
clause,  as  thus  reported,  was  almost  a  transcript  of 
a  similar  provision  in  the  Articles  of  Confederation. 
The  resolutions  of  instructions,  passed  by  the  Con- 
vention, and  referred  by  them  to  the  Committee  of 
Detail,  solemnly  declared  that  Congress  ought  to  pos- 
sess the  right  "  to  legislate  in  all  cases  in  which  the 
harmony  of  the  United  States  may  be  interrupted 
by  the  exercise  of  individual  legislation."2  In  ac- 
cordance with,  and  in  the  spirit  of  this  instruction, 
originated  the  second  clause  of  this  section,  reported 
thus  by  the  Committee  :  "And  the  Legislature  shall, 
by  general  laws,  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings,  shall  be  proved,  and 
the  effect  which  judgments  obtained  in  one  State 
shall  have  in  another."  "  Congress  may"  was  sub- 
stituted, by  amendment,  for  "  Legislature  shall ;"  and 
then  a  motion  was  made  to  amend  by  substituting 
the  words  "  and  the  effect  thereof,"  for  the  words 

1  Proceedings  and  Debates  of  Convention,  267. 

2  Secret  Proceedings  and  Debates,  &c.  250. 


SLAVES   ESCAPING   INTO    OTHER   STATES.  191 

"and  the  effect  which  judgments  obtained  in  one 
State  shall  have  in  another."  In  other  words,  to 
make  the  power  general,  instead  of  confining  it  to 
the  effect  of  judgments  only.  The  amendment  was 
carried  by  the  vote  of  six  States  against  three,  and 
thus  came  the  present  verbiage  of  this  clause.1 
Moreover,  Mr.  Madison's  report  of  the  debates  on 
this  section,  shows  conclusively  that  the  framers  of 
the  instrument  understood,  by  "  public  acts,"  the 
"  statute  laws."  Thus,  "  Mr.  Wilson  and  Dr.  Johnson 
supposed  that  the  acts  of  the  legislatures  should  be 
included  for  the  sake  of  acts  of  insolvency,"  &c. ;  and 
Mr.  Randolph  proposed  a  substitute,  reading :  "  the 
act  of  any  State,  whether  legislative,  executive,  or 
judicial."2 

§  207.  What  is  the  full  force  and  meaning  of  the 
words  "and  the  effect  thereof?"  A  diversity  of 
opinion  has  arisen  among  learned  courts  as  to  the 
proper  construction  of  these  words ;  some  referring 
them  to  the  authentication,  and  limiting  the  power 
of  Congress  to  prescribing  the  effect  of  such  authen- 
tication as  evidence.3  Others  referring  them  to  the 
"  acts,  records,  and  judicial  proceedings,"  and  thereby 
conferring  on  Congress  the  power  of  prescribing  the 
effect  of  such  acts,  records,  and  judicial  proceedings.4 

1  Journal  of  Convention,  pp.  228,  305,  320,  321 ;  3  Story,  on 
Constitution,  §  1298.  a  5  Elliott's  Debates,  488. 

8  Opinion  of  Livingston,  J.,  in  Hitchcock  v.  Aicken,  1  Caine's 
Kep.  471 ;  Bissell  v.  Briggs,  9  Mass.  443  (Sewall,  J.,  dissenting). 

4  Opinions  of  Radcliff,  J.,  Kent,  J.,  and  Lewis,  C.  J.,  in  Hitch- 
cock v.  Aicken,  1  Caine's  Rep.  471;  Armstrong  v.  Carsons,  2 
Ball.  302 ;  Bartlett  v.  Knight,  1  Mass.  401 ;  Green  v.  Sarmiento, 
1  Peters  C.  C.  Rep.  78 ;  see  Federalist,  No.  xlii. 


192  LAW  OF  NEGRO   SLAVERY. 

The  history  of  this  clause,  given  in  the  foregoing 
section,  favors  the  latter  construction. 

In  addition  to  the  facts  stated,  it  appears  that 
when  the  clause  was  under  discussion,  Mr.  Madison 
advocated  it  upon  the  express  ground,  that  "he 
wished  the  Legislature  (Congress)  might  be  autho- 
rized to  provide  for  the  execution  of  judgments  in 
other  States,  under  such  regulations  as  might  be 
expedient.  He  thought  this  might  be  safely  done, 
and  was  justiiied  by  the  nature  of  the  union."  Mr. 
Governeur  Morris  moved  to  commit,  with  the  clause, 
the  following  proposition,  which  was  done  nem.  con.  : 
"  The  Legislature  shall,  by  general  laws,  determine 
the  proof  and  effect  of  such  acts,  records,  and  pro- 
ceedings."1 This  last  proposition,  agreed  to  without 
a  dissenting  voice,  seems  to  place  beyond  question 
the  construction  put  upon  this  section  by  the  framers 
of  it.  In  the  Virginia  Convention,  the  Constitution 
underwent  a  most  critical  examination,  section  by 
section.  The  stern  State  Right  views  of  Mr.  George 
Mason  were  alarmed  at  this  clause,  and  he  said, "  How 
far  it  may  be  proper  that  Congress  shall  declare  the 
effects  of  acts,  I  cannot  clearly  see  into."  Mr. 
Madison  replied,  that  "  this  was  a  clause  which  was 
absolutely  necessary,"  and  it  was  adopted  without  a 
dissenting  voice.2  So  that  it  appears  that  the  con- 
ventions ratifying,  as  well  as  the  framers  of  this 
clause,  so  construed  it.  And  such  seems  to  be  the 
interpretation  of  it  by  the  Supreme  Court  of  the 
United  States,  in  the  leading  case  of  Mills  v.  Duryee,3 

1  5  Elliott's  Debates,  488.  *  3  Elliott's  Debates,  584. 

3  7  Cranch,  481 ;  Hampden  v.  McConnell,  3  Wheaton,  234. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      193 

which  has  been  adopted  and  approved  ever  since. 
In  that  case  Mr.  Justice  Johnson  dissented  from  the 
opinion  of  the  Court,  insisting  that  "faith  and  credit 
were  terras  strictly  applicable  to  evidence,"  and  that 
the  record  of  a  judgment  authenticated  under  the 
Act  of  1790,  was  only  priina  facie  evidence  of  in- 
debtedness. And  considerable  difference  of  opinion 
exists  in  the  courts,  as  to  the  effect  of  the  Act  of 
1790,  declaring  that  the  records,  "authenticated  as 
aforesaid,  shall  have  such  faith  and  credit  given  to 
them  in  every  court  within  the  United  States,  as 
they  have,  by  law  or  usage,  in  the  courts  of  the  State 
from  whence  the  said  records  are  taken ;"  the  one 
side  holding  that  Congress,  though  authorized  to 
declare  the  effect  of  the  judgment  in  this  act,  has 
declared  only  the  effect  of  the  record  as  evidence ; 
the  others  contending,  that  under  this  act  Congress 
has  declared  the  judgment  as  conclusive  as  in  the 
State  where  it  is  rendered.  This  controversy  is 
foreign  to  our  purpose,  and  reference  is  made  to  it 
only  to  show  that  neither  side  necessarily  deny  the 
construction  of  the  clause  in  the  Constitution  to 
which  we  lean,  though  some  of  the  advocates  of  the 
latter  opinion  have  done  so,  as  we  have  seen  above. 
§  208.  We  cannot  forbear  here  to  quote  a  portion 
of  the  very  satisfactory  reasoning  of  Mr.  Justice 
Washington,  in  construing  this  clause  of  the  Consti- 
tution. In  the  case  of  Green  v.  Sarmiento,1  he 
says,  "  That  the  intention  of  the  Constitution  to  in- 
vest Congress  with  the  power  to  declare  the  judg- 
ments of  the  courts  of  one  State  conclusive  in  every 

1 1  Peters  C.  C.  Kep.  78,  79. 
13 


194  LAW  OF   NEGRO   SLAVERY. 

other,  and  even  to  clothe  them  with  a  still  more  ex- 
tended force  and  effect,  corresponded  with  the  strong 
and  unambiguous  expressions  used  in  this  article, 
will  appear  from  the  following  considerations.  First. 
It  is  presumable  that  the  enlightened  framers  of 
that  instrument  knew  that  by  the  general  comity  of 
nations,  and  by  the  long-established  rules  of  that 
country,  whose  decisions  were  once  of  binding  au- 
thority in  the  United  States,  and  to  a  certain  period 
were  still  observed  and  adopted,  a  foreign  judg- 
ment might  be  made  the  foundation  of  an  action 
here,  and  was  primd  facie  evidence  of  its  own  cor- 
rectness. It  is  highly  probable,  therefore,  that  the 
Constitution  intended  something  more  than  merely 
to  recognize  an  established  rule  of  law.  ...  If 
nothing  more  was  meant,  the  provision  was  certainly 
unnecessary.  It  would  on  the  contrary  seem  more 
natural  that  the  Constitution,  which  was  intended  to 
'  form  a  more  perfect  union,'  and  a  more  close  and 
intimate  connection  of  the  States  than  had  existed 
under  the  Confederation,  would  consider  the  judg-, 
ments  of  the  several  States  in  relation  to  each  other 
as  domestic  rather  than  foreign  j  udgments.  Secondly. 
The  change  of  the  language  of  this  section  of  the 
Constitution  from  the  parallel  section  of  the  Articles 
of  Confederation,  affords  a  strong  reason  for  the  opi- 
nion, that  the  former  was  intended  to  give  to  the 
judgments  of  each  State,  within  the  other  States,  a 
more  extensive  force  and  effect  than  the  rule  of  law, 
founded  on  mere  comity,  had  allowed  to  foreign  judg- 
ments." 

§  209.  Mr.  Story,  in  his  Commentaries  on  the 
Constitution,  when  considering  this  section,  indulges 


SLAVES  ESCAPING  INTO  OTHER  STATES.      195 

in  a  similar  train  of  thought.  "  It  is  hardly  con- 
ceivable," he  says,1 "  that  so  much  solicitude  should 
have  been  exhibited  to  introduce,  as  between  con- 
federate States,  much  less  between  States  united 
under  the  same  national  government,  a  clause 
merely  affirmative  of  an  established  rule  of  law, 
and  not  denied  to  the  humblest  or  most  distant 
foreign  nation.  It  was  hardly  supposable  that  the 
States  would  deal  less  favorably  with  each  other  on 
such  a  subject,  where  they  could  not  but  have 
a  common  interest,  than  with  foreigners.  A  mo- 
tive of  a  higher  kind  must  naturally  have  directed 
them  to  the  provision.  It  must  have  been  to  '  form 
a  more  perfect  union,'  and  to  give  to  each  State  a 
higher  security  and  confidence  in  the  others  by  at- 
tributing a  superior  sanctity  and  conclusiveness  to 
the  public  acts  and  judicial  proceedings  of  all.  There 
could  be  no  reasonable  objection  to  such  a  course ; 
on  the  other  hand,  there  were  many  reasons  in  its 
favor.  The  States  were  united  in  an  indissoluble 
bond  with  each  other.  The  commercial  and  other 
intercourse  with  each  other  would  be  constant  and 
infinitely  diversified;  credit  would  be  everywhere 
given  and  received,  and  right  and  property  would 
belong  to  citizens  of  every  State  in  many  other 
States  than  that  in  which  they  resided." 

§  210.  The  attention  of  these  learned  jurists  was 
turned  only  to  the  evils  which  would  flow  from  a 
denial  by  the  States  to  each  other,  of  those  princi- 
ples of  enlightened  comity,  which  applied  more 
directly  to  the  judgments  and  records  of  the  courts; 

1  Vol.  iii,  §  1303. 


196  LAW  OF  NEGRO   SLAVERY. 

and  the  possibility  of  such  evils,  in  their  judgment, 
justified  the  enlightened  framers  of  the  Constitution 
in  inserting  the  section  now  under  consideration. 
When  we  look  to  the  still  greater  and  momentous 
evils  which  would  flow  from  a  denial  by  the  States 
to  each  other,  of  those  principles  of  comity  by  which, 
under  certain  circumstances,  the  citizen  carries  with 
him  into  another  State  the  protection  of  the  muni- 
cipal law  of  his  domicile,  the  necessity  for  such  a 
provision  in  the  Constitution  in  reference  to  the  laws 
of  the  several  States  is  much  more  obvious,  and 
every  consideration  suggested  in  favor  of  the  exer- 
cise of  such  a  power  in  reference  to  judgments, 
applies  with  tenfold  power  to  the  exercise  of  it  in 
reference  to  the  laws. 

§  211.  Yet  it  is  an  undeniable  fact,  that  the  na- 
ture and  extent  of  this  power  given  to  Congress, 
while  it  has  undergone  scrupulous  investigations  so 
far  as  records  and  judgments  are  concerned,  has 
never  attracted  attention  in  the  courts  in  that  more 
important  light,  viz.,  the  declaring  the  effect  of  the 
laws  of  one  State,  over  the  citizens  of  that  State 
and  their  property,  when  within  the  territorial 
jurisdiction  of  another.  In  this  light,  this  clause  of 
the  Constitution  is  not  deserving  the  comment  of 
the  Federalist,  that  it  "  can  be  of  little  importance 
under  any  interpretation  which  it  will  bear."1 — 
Nor  does  it  afford  an  argument  against  this  con- 
struction, that  hitherto  so  important  a  power  has 
remained  dormant  and  unnoticed.  The  occasion  for 
its  exercise,  so  long  as  good  faith  and  comity  exist 

1  Federalist,  No.  xlii. 


SLAVES    ESCAPING    INTO    OTHER    STATES.  197 

between  the  States,  can  never  arise.  "  The  Consti- 
tution," says  the  Supreme  Court,  "  was  not  intended 
to  provide  merely  for  the  exigencies  of  a  few  years, 
but  was  to  endure  through  a  long  lapse  of  ages,  the 
events  of  which  were  locked  up  in  the  inscrutable 
purposes  of  Providence.  It  could  not  be  foreseen 
what  new  changes  and  modifications  of  power  might 
be  indispensable  to  effectuate  the  general  objects  of 
the  charter;  and  restrictions  and  specifications  which, 
at  the  present,  might  seem  salutary,  might  in  the 
end  prove  the  overthrow  of  the  system  itself. 
Hence,  its  powers  are  expressed  in  general  terms ; 
leaving  to  the  legislature  from  time  to  time  to  adopt 
its  own  means,  to  effectuate  legitimate  objects,  and 
to  mould  and  model  the  exercise  of  its  powers  as 
its  own  wisdom  and  the  public  interests  should  re- 
quire."1 

§  212.  It  may  be  replied,  that  this  is  a  construc- 
tion dangerous  to  the  rights  and  sovereignty  of  the 
States,  by  which,  carried  to  its  utmost  limits,  Con- 
gress might  declare  the  legislative  acts  of  one  State 
binding  upon  the  citizens  and  property  of  every 
other  State.  But,  non  sequitur,  it  could  be  as  well 
and  more  plausibly  argued,  that  because  Congress 
can  declare  the  effect  of  a  judgment,  and  render  that 
conclusive  which  before  was  only  primd  facie  evi- 
dence, a  power  never  denied,  that  Congress  might 
go  farther,  and  give  to  the  judgments  of  one  favored 
State  a  priority  of  lien  throughout  the  United  States. 
This  clearly  cannot  be  done,  and  the  same  reason 
defeats  both  conclusions.  Congress  can  give  no 

1  Martin,  heir  of  Fairfax  v.  Hunter's  Lessee,  1  Wheat.  304. 


198  LAW  OP   NEGRO   SLAVERY. 

effect  to  a  judgment  in  another  State,  which  it  did 
not  have  under  the  laws  of  the  State  where  ren- 
dered. It  may  authorize  it  to  follow  into  another 
State  property  upon  which  its  lien  had  attached  in 
its  own  State,  but  it  cannot  give  it  a  lien  on  pro- 
perty  upon  which  the  laws  of  the  State  where  it  is 
rendered  are  powerless  to  create  a  lien.  Congress 
may  declare  it  to  be  record  evidence,  and  hence  con- 
clusive, for  such  it  is  in  the  State  where  it  is  ren- 
dered ;  but  it  cannot  provide  a  process  to  issue 
thereon  against  the  body  of  the  defendant  in  ano- 
ther State,  when  no  such  process  is  authorized  in  the 
State  of  its  rendition. 

§  213.  So,  likewise,  of  the  legislative  acts  of  a 
State.  It  is  not  within  the  power  of  Congress  to 
extend  their  effect  over  persons  or  property  to  which 
they  did  not  apply  proprio  vigore,  but  it  is  within 
the  competency  of  Congress  to  declare  their  effect 
and  extend  their  protection  over  such  persons  and 
property  wherever  found  within  the  limits  of  the 
United  States.  If,  in  the  exercise  of  this  power, 
Congress  should  infringe  upon  any  of  those  rights 
reserved  to  the  States,  for  example,  the  control  bond 
fide  of  their  internal  police  regulations,  the  act  would 
be  unconstitutional  and  inoperative.1  It  may  be  a 
difficult  question  to  decide,  where  the  State's  power 
to  regulate  police  ends,  and  when  this  power  is  exer- 
cised bond  fide.  This  must  be  left  necessarily  to  the 
wisdom  of  the  respective  governments,  and  the 
purity  and  independence  of  the  judiciary. 

1  See  Prigg  v.  Commonwealth  of  Pa.  16  Peters,  471,  625;  Wil- 
lard  v.  The  People,  4  Scammon,  470. 


SLAVES   ESCAPING   INTO    OTHER    STATES.  If  9 

§  214.  Our  conclusion  then  is,  that  should  any 
one  of  the  States  prove  so  recreant  to  the  great  ob- 
ligation resting  upon  her  under  the  bond  of  union, 
as  by  legislative  enactment  to  deny  to  the  citizens 
of  the  other  States,  who  may  be  within  her  borders, 
the  protection  of  their  municipal  laws,  to  which  they 
are  entitled  under  the  comity  of  nations,  a  correc- 
tive power  is  lodged  by  the  Constitution  in  the  Con- 
gress of  the  United  States.  Hence,  should  any 
State,  by  its  local  enactments,  deny  to  the  slave- 
holder, those  privileges  and  protection  which  we 
have  seen  are  awarded  to  him,  through  comity,  by 
the  courts  of  independent  nations,  it  would  be  the 
solemn,  though  delicate  duty  of  the  national  legisla- 
ture, to  exercise  this  power  in  his  behalf. 

§  215.  From  this  view  of  the  nature  and  powers 
of  the  Union,  under  the  Constitution,  our  conclu- 
sions, upon  mere  abstract  reasoning,  would  be,  that 
the  rules  heretofore  deduced  from  the  principles  of 
the  comity  of  nations,  as  recognized  by  independent 
States,  with  increased  sanction  apply  to  the  courts 
of  the  several  States.  Those  rules  were, 

1st.  That  where  there  is  a  change  of  domicile  from 
a  slaveholding  to  a  non-slaveholding  State,  the  ani- 
mus remanendi  works  of  itself,  and  instanter,  a  change 
of  the  status  of  the  slave  so  long  as  he  remains  within 
that  territory. 

2d.  That  the  mere  transit  of  the  master  with  his 
slave,  either  from  necessity  or  convenience,  through 
the  territory  of  a  non-slaveholding  State,  does  not 
change  the  status  of  the  slave. 

3d.  That  as  a  general  rule,  where  there  is  a  bond 
fide  temporary  residence  of  a  master  with  his  slave 


200  LAW  OF   NEGRO   SLAVERY. 

in  a  non-slaveholding  State,  the  animus  revertendi 
will  protect  the  master's  right  in  his  slave,  to  the 
extent  of  his  personal  service,  and  the  right  to  re- 
turn with  him  to  his  domicile.  At  the  same  time,  if 
this  privilege  is  used  to  evade  the  local  laws  of  the 
State  in  reference  to  slavery,  or  the  exercise  of  it 
becomes  so  general  as  to  interfere  with  the  policy 
or  be  prejudicial  to  the  interest  of  the  government 
or  its  people,  the  courts  will  not  violate  the  princi- 
ples of  comity  in  refusing  their  aid  in  enforcing  these 
rights.  t 


CHAPTER  XI. 

SAME   SUBJECT   CONTINUED. — DECISIONS  OF  OUR   OWN 
COURTS  EXAMINED. 

§  216.  HAVING  arrived  at  those  rules  which  ought 
to  govern  the  decision  of  this  delicate  question,  let 
us  examine  the  adjudged  cases,  to  see  how  far  they 
have  been  recognized  by  the  Federal  and  State  courts. 
It  would  be  proper  to  premise,  that  with  us,  as  in 
England,  these  peculiar  questions  of  international 
law  have  not,  until  lately,  received  that  attention  to 
which  they  were  entitled.  Having  adopted,  almost 
universally,  the  common  law  of  England,  and  with 
it  many  of  its  unfounded  prejudices  against  the  civil 
law,  the  profession  have  confined  their  researches 
very  generally  to  those  fountains  whence  the  com- 
mon law  flowed.  Upon  these  questions,  we  have 
seen  that  they  were  indeed  "  broken  cisterns."  Mr. 
Story,  it  is  true,  broke  through  the  barriers,  and  has 
enriched  his  many  valuable  treatises  with  the  wis- 
dom of  the  continental  jurists.  Unfortunately  for 
us,  however,  upon  the  question  we  are  now  consider- 
ing, he  permitted  his  anti-slavery  prejudices  to  bias 
his  judgment  and  blind  his  vision;  and  his  work  on 
the  "  Conflict  of  Laws"  has  rather  tended  to  make 
the  "  darkness  visible,"  than  to  place  upon  a  sound 


202  LAW   OF   NEGRO   SLAVERY. 

basis  the  determination  of  the  question  at  issue.1 
The  same  prejudices  have  necessarily,  to  a  great  ex- 
tent, entered  into  the  adjudication  of  the  several 
courts ;  the  cases  generally  arising  in  a  non-slave- 
holding  State,  and  the  decisions  being  pronounced 
generally  by  anti-slavery  men.  Hence,  we  find  in 
almost  every  decision,  the  announcement  of  the  erro- 
neous principle,  that  African  slavery  is  contrary  to 
the  law  of  nature,  and  is  supported  solely  by  muni- 
cipal law ;  a  position  which,  we  think,  is  success- 
fully shown  to  be  incorrect. 

§  217.  This  question  has  never  been  directly 
decided  by  the  Supreme  Court  of  the  United  States. 
It  was  alluded  to  in  the  argument  and  decision  of 
the  case  of  Prigg  v.  The  Commonwealth  of  Pennsyl- 
vania,2 but  only  incidentally,  it  not  being  at  all 
necessary  to  the  decision  of  that  case.  The  opinion 
was  written  out  by  Mr.  Justice  Story,  and  his  dicta 
upon  this  question  deserve  our  notice.  He  says : 
"  By  the  general  law  of  nations,  no  nation  is  bound 
to  recognize  the  state  of  slavery,  as  to  foreign  slaves 
within  its  territorial  dominions,  when  it  is  in  oppo- 
sition to  its  own  policy  and  institutions,  in  favor  of 
the  subjects  of  other  nations  where  slavery  is  recog- 
nized. If  it  does  it,  it  is  as  a  matter  of  comity,  and 
not  as  a  matter  of  international  right.  The  state  of 

1  To  such  an  extent  did  this  prejudice  carry  him,  that  in  the 
case  of  La  Jeune  Eugenie,  he  held  the  "  slave-trade  to  be  a  viola- 
tion of  the  law  of  nations/'  against  the  decision  of  every  court  in 
England  and  America.     Upon  which  decision  Mr.  Wildman,  an 
English  writer,  remarks,  that  it  is  "  elaborately  incorrect."     Wild- 
man's  International  Law,  11. 

2  16  Peters,  610. 


SLAVES    ESCAPING   IXTO    OTHER    STATES.  203 

slavery  is  deemed  to  be  a  mere  municipal  regulation, 
founded  upon  and  limited  to  the  range  of  territorial 
laws.  This  was  fully  recognized  in  Somersett's  case. 
It  is  manifest,  from  this  consideration,  that  if  the 
Constitution  had  not  contained  this  clause  (in  refer- 
ence to  fugitive  slaves),  every  non-slaveholding 
State  in  the  Union  would  have  been  at  liberty  to 
have  declared  free  all  runaway  slaves  coming  within 
its  limits,  and  to  have  given  them  entire  immunity 
and  protection  against  the  claims  of  their  masters ; 
a  course  which  would  have  created  the  most  bitter 
animosities,  and  engendered  perpetual  strife  between 
the  different  States." 

§  218.  In  this  extract,  truth  and  error  are  strangely 
blended ;  a  characteristic  of  all  that  fell  from  this 
distinguished  jurist  on  the  subject  of  slavery.  The 
proposition  announced  in  the  outset,  is  true,  being 
the  exception,  viz.,  "  when  it  is  in  opposition  to  its 
own  policy  and  institutions."  The  second  clause  is 
ridiculous,  viz.,  "if  it  does  it,  it  is  a  matter  of 
comity,"  &c.,  for  when  did  a  nation,  through  comity, 
ever  recognize  the  municipal  law  of  another,  "  in 
opposition  to  its  own  policy?"  That  these  principles 
were  settled  in  Somersett's  case,  we  have  shown  to 
be  untrue,  as  they  were  never  alluded  to,  and  could 
not  be  settled.  And  then  his  conclusion,  that  "  from 
this  consideration,"  &c.,  the  clause  in  the  Constitu- 
tion is  the  only  protection  of  the  slaveholding  States, 
is  a  perfect  non  sequitur.  Or  rather,  in  more  logical 
phrase,  it  is  apetitio  principii;  for  he  assumes  the 
fact  to  exist,  that  the  recognition  of  foreign  slavery 
would  be  violative  of  the  interests  and  policy  of  the 
non-slaveholding  States.  The  closing  remark  is 


2C4  LAW   OF   NEGRO   SLAVERY. 

eminently  true,  that  the  denial  of  this  comity,  on 
the  part  of  the  non-slaveholding  States,  would  be 
"a  course  creating  the  most  bitter  animosities,  and 
engendering  perpetual  strife  between  the  different 
States."  That  such  would  have  been  the  law,  in  the 
absence  of  the  clause  in  the  Constitution  referred  to, 
we  cannot  admit.  We  adopt  rather,  the  more  satis- 
factory and  enlightened  opinion  of  Mr.  Justice  Bald- 
win, that  "the  Constitution  does  not  confer  but 
secures  the  right  to  reclaim  fugitive  slaves  against 
State  legislation."1  To  which  latter  opinion  the 
Supreme  Court  of  the  United  States,  in  the  late  case 
of  Jones  v.  Van  Zandt,  have  given  their  unqualified 
approval.2 

§  219.  The  case  of  Butler  v.  Hopper,3  decided  by 
Mr.  Justice  Washington,  on  the  Circuit,  proceeds 
entirely  and  correctly  upon  the  local  law  of  Penn- 
sylvania, which  protected  the  sojourner  in  the  use 
of  his  slave.  This  act,  in  this  particular,  was  affir- 
matory  of  the  principles  for  which  we  are  contend- 
ing; and  the  decision  in  Butler  v.  Hopper  was  correct, 
in  the  absence  of  the  local  law. 

§  220.  Vaughn  v.  Williams,4  decided  by  Mr.  Jus- 
tice McLean,  on  the  Circuit,  affirms  the  principle, 
that  an  owner  of  slaves  who  takes  them  into  a  non- 
slaveholding  State,  keeps  them  at  labor  for  six 
months,  announces  his  determination  to  become  a 
resident  of  such  State,  and  in  pursuance  thereof 
casts  his  vote  at  elections,  thereby  forfeits  his  right 
to  them  as  slaves. 

1  Johnson  v.  Tompkins  efc  al.  1  Baldwin's  Rep.  571. 

a  5  Howard,  229. 

3  1  Wash.  C.  C.  R.  499.  *  3  McLean's  Reports,  530. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      205 

§  221.  In  Jones  v.  Van  Zandt,1  the  same  Judge 
presiding,  this  dictum  appears :  "  If  a  person  held  in 
slavery  go  beyond  the  jurisdiction  where  he  is  so 
held,  and  into  another  sovereignty  where  slavery  is 
not  tolerated,  he  becomes  free.  And  this  would  be 
the  law  of  these  States,  had  the  Constitution  of  the 
United  States  adopted  no  regulation  upon  the  sub- 
ject." No  argument  or  authority  is  offered  to  sup- 
port this  dictum,  and  the  only  remark  necessary  for 
our  purpose  is,  that  in  the  decision  on  appeal  of  this 
case  by  the  Supreme  Court,  the  very  opposite  doc- 
trine is  asserted,  and  acquiesced  in  by  the  whole 
Court,  Justice  McLean  being  one  of  them.2 

§  222.  In  Strader  et  al.  v.  Graham,3  where  slaves 
who  had  been  temporarily  taken  to  Ohio,  returned  to 
Kentucky,  and  subsequently  sought  to  base  a  claim 
for  freedom  thereon,  the  Supreme  Court  held  that 
it  had  no  jurisdiction;  the  question  being  one  which 
belonged  exclusively  to  the  State  of  Kentucky. 
"The  condition  of  the  negroes,  therefore,  as  to  free- 
dom or  slavery,  after  their  return,  depended  alto- 
gether upon  the  laws  of  that  State,  and  could  not 
be  influenced  by  the  laws  of  Ohio."  I  am  not  pre- 
pared to  sanction,  fully,  this  statement ;  for,  if  the 
residence  in  Ohio  has  effected  the  emancipation  of 
the  slave,  that  status  would  not  be  changed  by  a 
return  to  the  slaveholding  State. 

§  223.  We  come  now  to  consider  the  case  of  Dred 
Scott  v.  Sanford,  decided  by  the  Supreme  Court, 
December  Term,  1856."  The  question  we  are  con- 

1  2  McLean's  Rep.  601. 

9  Jones  v.  Van  Zandt,  5  Howard  (U.  S.),  229. 

8 10  Howard,  2.  « 19  Howard,  1. 


206  LAW  OF   NEGRO   SLAVERY. 

• 

sidering  was  only  incidental  to  the  point  decided, 
which  was  identical  with  that  decided  by  Lord 
Stowell,  in  reference  to  the  slave  Grace,  and  was 
adjudicated  by  the  Court  in  accordance  with  that 
decision.  The  Chief  Justice  (Taney),  who  delivered 
the  opinion  of  the  Court,  did  not  pretend  to  consider 
the  point  we  are  arguing ;  Mr.  Justice  Nelson  ex- 
pressly declined  to  enter  upon  the  investigation. 
Others  of  the  Court  did,  and  we  will  examine  briefly 
their  views.  Mr.  Justice  Daniel  comments  upon 
the  Somersett  case,  and  restricts  the  decision  to  the 
mere  question  of  the  detention  of  the  slave  in  bond- 
age, within  the  realm  of  England,  and  shows  how 
the  decision  of  Lord  Stowell  so  restricts  it. 

§  224.  But  Mr.  Justice  Campbell  enters  more  at 
large  upon  the  question,  and  shows  a  familiarity  with 
it,  exhibited  in  few  judicial  opinions  reported  in  our 
books.  In  the  absence  of  any  prohibitory  law  he 
shows,  that  the  slave  would  not  be  liberated  by  the 
accident  of  his  introgression  into  a  State,  and  adds : 
"  The  relation  of  domestic  slavery  is  recognized  by 
the  law  of  nations,  and  the  interference  of  the  au- 
thorities of  one  State  with  the  rights  of  a  master 
belonging  to  another,  without  a  valid  cause,  is  a 
violation  of  that  law."1  He  shows  that  the  reclaim- 
ing of  slaves  was  universally  allowed  by  the  public 
law  of  Europe  for  many  years,  and  that  it  was  first 
curtailed  by  the  enactment  of  laws  of  prescription 
in  favor  of  privileged  communes.  Bremen,  Spire, 
Worms,  Vienna,  and  Ratisbon,  in  Germany ;  and 
Carcassonne,  Beziers,  Toulouse,  and  Paris,  in  France, 

1  19  Howard,  101. 


SLAVES    ESCAPING   INTO    OTHER   STATES.  207 

acquired  these  privileges  at  an  early  period.  This 
fact  explains  the  cases,  referred  to  by  Bodin,  and 
cited  in  the  discussion  of  the  case  in  "  Causes  Cele- 
bres,"  already  referred  to.  He  then  examines  the 
Somersett  case,  and  shows  the  extent  of  that  deci- 
sion, especially  as  explained  by  Lord  Stowell  in  the 
case  of  the  slave  Grace,  and  affirms  this  latter  deci- 
sion. He  ridicules  justly  the  excited  and  inflamma- 
tory declamation  of  the  French  advocates,  in  the 
case  of  Verdelin,  and  shows  how  unfounded  was  the 
pretence,  that  negro  slavery,  and  other  bondage 
equally  as  severe,  never  existed  in  England. 

§  225.  Mr.  Justice  McLean,  in  his  dissenting 
opinion,  maintains  the  opposite  doctrine ;  basing  his 
whole  argument  upon  the  principle  asserted  by  Judge 
Story  in  Prigg  v.  The  State  of  Pennsylvania,  that 
"  the  state  of  slavery  is  deemed  to  be  a  mere  muni- 
cipal regulation,  founded  upon  and  limited  to  the 
range  of  the  territorial  laws."  Having  shown  that 
this  is  not  correct,  in  a  former  chapter,  it  is  unneces- 
sary to  consider  the  corollaries  drawn  therefrom.1 
We  may  remark,  that  Judge  McLean  refers  to  seve- 
ral cases  decided  by  the  Supreme  Courts  of  Mis- 
souri and  other  States,  in  almost  all  of  which,  upon 
examination,  it  will  be  found  that  the  slave  acquired 
a  domicile  in  the  free  State ;  and  hence,  on  returning 
to  a  slaveholding  State,  carried  the  status  acquired 
in  the  new  domicile.  A  principle  we  have  seen  to 
be  perfectly  correct,  unless  it  be  against  the  policy 
of  the  old  domicile  to  allow  the  increase  of  free 
negroes  within  it.  We  admit,  however,  that  there 

1  19  Howard,  135-170. 


208  LAW   OF   NEGRO    SLAVERY. 

are  cases  where  the  Judges  in  slaveholding  States 
have  carelessly  recognized  the  deduction  drawn  from 
the  Soraersett  case. 

§  226.  Mr.  Justice  Curtis  also  dissented.  He  lays 
down  clearly  and  correctly  the  rule  as  to  personal 
statutes  following  the  person,  and  says,  "  that  the 
laws  of  a  country  do  not  rightfully  operate  upon  and 
fix  the  status  of  persons  within  its  limits  in  itinere, 
or  who  are  abiding  there  for  definite  temporary  pur- 
poses, as  for  health,  curiosity,  or  occasional  busi- 
ness." That  it  is  true  that  a  State  may,  by  law, 
declare  its  determination  not  to  recognize  this  comity, 
and  such  a  law  the  courts  must  obey.  But  until 
such  a  law  is  passed,  "  it  is  not  within  the  province 
of  any  judicial  tribunal  to  refuse  such  recognition 
from  any  political  considerations,  or  any  view  it 
may  take  of  the  exterior  political  relations  between 
the  State  and  one  or  more  foreign  States,  or  any 
impressions  it  may  have,  that  a  change  of  foreign 
opinion  and  action,  on  the  subject  of  slavery,  may 
afford  a  reason  why  the  State  should  change  its  own 
action."  Applying  these  principles  to  the  case  before 
him,  Judge  Curtis  finds  that  law  in  the  ordinance 
which  prohibited  involuntary  servitude  or  slavery 
within  the  territory  of  Wisconsin,  where  the  negro 
had  been  taken.  He  argues  the  question  at  length 
upon  the  several  provisions  of  the  statute,  and  adds, 
"  I  must  conclude,  therefore,  that  it  was  the  will  of 
Congress  that  the  state  of  involuntary  servitude  of 
a  slave,  coming  into  the  territory  with  his  master, 
should  cease  to  exist."  (p.  200.)  If  this  was  a  cor- 
rect inference,  the  law  is  correctly  expounded  by 
him.  We  must  dissent  from  this  inference.  The 


SLAVES  ESCAPING  INTO  OTHER  STATES.      209 

principle,  however,  as  we  have  laid  it  down,  is  fully 
recognized  and  clearly  stated.1 

§  227.  We  come  now  to  consider  the  decisions  of 
the  courts  of  the  several  States.  From  their  great 
number,  we  are  not  allowed  to  examine  them  with 
that  minuteness  that  would  otherwise  be  desirable. 
We  shall  look  briefly  at  the  adjudications  of  each 
State. 

Prominent  and  chiefly  relied  on  by  those  who  hold 
the  opposite  opinion  stands  the  case  of  The  Common- 
wealth v.  Aves,  decided  in  Massachusetts.3  The 
case  was  elaborately  and  well  argued  by  counsel  on 
both  sides.  The  points  were  distinctly  made  before 
the  Court.  The  claim  of  the  master  was  placed 
upon  its  proper  basis  by  his  counsel,  Mr.  Curtis ;  and 
no  better  answer  could  be  made  to  the  decision  of 
the  Court,  than  is  furnished  in  the  published  brief 
of  the  counsel.  The  Court  admit  the  doctrine,  that 
the  personal  status  of  the  slave  is  not  changed  by 
the  removal  into  a  non-slaveholding  State ;  and  the 
general  principle,  that  by  the  comity  of  States,  the 
courts  of  one  will  recognize  and  enforce,  in  certain 
cases,  the  municipal  laws  of  the  other.  But  the 
Court  decides  that  this  doctrine  does  not  apply, "  be- 
cause if  it  did,  it  would  follow  as  a  necessary  conse- 
quence that  all  those  persons,  who,  by  force  of  local 
laws,  and  in  all  foreign  places  where  slavery  is  per- 
mitted, have  acquired  slaves  as  property,  might 
bring  their  slaves  here  and  exercise  over  them  the 
rights  and  power  which  an  owner  of  property  might 
exercise,  and  for  any  length  of  time  short  of  acquir- 

1  19  Howard,  197  et  seq.  3 18  Pick.  193-225. 

14 


210  LAW  OF   NEGRO   SLAVERY. 

ing  a  domicile ;  that  such  an  application  of  the  law 
would  be  wholly  repugnant  to  our  laws,  entirely  in- 
consistent with  our  policy  and  our  fundamental 
principles,  and  is  therefore  inadmissible."  In  a  sub- 
sequent portion  of  the  decision,  the  Court  disclaims 
giving  any  opinion  "  upon  the  case  where  an  owner 
of  a  slave  in  one  State  is  bond  fide  removing  to  an- 
other State  where  slavery  is  allowed,  and  in  so  doing, 
necessarily  passes  though  a  free  State ;  or  where,  by 
accident  or  necessity,  he  is  compelled  to  touch  or 
land  therein,  remaining  no  longer  than  necessary." 

§  228.  The  difficulty  into  which  the  Court  has 
fallen,  is  almost  self-evident.  If  the  master  can  con- 
trol the  slave  for  an  hour,  while  passing  in  tran- 
situ,  why  will  not  the  same  law  protect  him  for  a 
day,  a  week,  a  month  ?  The  only  sensible  distinc- 
tion is,  that  the  courts  will  protect  him  so  long  as 
that  protection  contravenes  not  their  own  public 
policy,  and  no  longer.  The  Court  errs,  in  saying, 
that  "  a  necessary  consequence"  of  applying  the  doc- 
trine of  comity  to  the  case  then  at  bar,  was,  that  it 
would  protect  all  masters  in  any  residence  "  short  of 
acquiring  a  domicile."  There  might  be  such  a  case 
truly  "repugnant  to  their  laws,"  and  hence  without 
the  pale  of  comity ;  while  the  case  then  at  bar  was 
in  no  wise  repugnant  to  their  laws,  as  was  clearly 
shown  by  the  argument  of  Mr.  Curtis.  Moreover, 
as  Mr.  Justice  Curtis  shows  in  his  decision  in  the 
Dred  Scott  case,  just  examined,  this  is  a  question 
for  legislative  and  not  judicial  discretion.  Until  the 
legislature  speak,  either  directly  or  by  necessary  in- 
ference, the  courts  are  bound  to  respect  the  comity 


SLAVES  ESCAPING  INTO  OTHER  STATES.      211 

of  States.     This  case  has  been  since  followed  by  the 
Courts  of  Massachusetts.1 

§  229.  In  Connecticut,  this  question  was  directly 
made  and  decided,  in  the  case  of  Jackson  v.  Bullock,2 
the  year  succeeding  the  decision  in  Commonwealth 
v.  Aves  (1837).  It  was  not  necessary  to  the  case, 
on  account  of  a  statute  of  Connecticut,  upon  which 
a  majority  of  the  Court  rested  their  decision.  The 
Court  divided  in  their  opinion,  three  Judges  affirm- 
ing the  case  Commonwealth  v.  Aves,  and  two  main- 
taining the  principles  for  which  we  contend;  The 
majority  of  the  Court  declined  to  enter  upon  the 
examination  of  the  authorities  upon  this  question, 
adopting  simply  the  decision  in  the  case  referred  to. 
Our  remarks  in  reference  to  that  case,  consequently 
apply  to  their  decision.  It  is  a  curious  fact,  how- 
ever, that  the  majority  state  that  "  it  had  been  con- 
ceded that  the  master  could  claim  nothing  by 
comity,"  when  that  was  the  very  question  before 
them  for  decision.  The  dissenting  opinion  of  Mr. 
Justice  Bissell,  concurred  in  by  Church,  J.,  is  able, 
liberal,  and  convincing.  Grasping  the  whole  sub- 
ject, while  he  admits  his  sympathies  to  be  with  the 
slave,  he  drives  away  every  prejudice,  and  boldly 
follows  to  those  conclusions  to  which  principle  and 
law  guided  him.  So  far  from  considering  it  to  be 
conceded  that  the  master  claimed  nothing  from 
comity,  he  understood  his  rights  to  rest  solely  upon 
it.  Clearly  laying  down  the  general  rule  as  to  status, 
and  the  principles  of  comity,  he  necessarily  is  brought 

1  Commonwealth  v.  Taylor,  3  Mete.  72. 
2 12  Connecticut  Rep.  38. 


212  LAW  OF   NEGRO   SLAVERY. 

to  consider  the  question, — the  only  question  in  such 
cases, — does  the  enforcement  of  such  comity  contra- 
vene the  public  policy  of  the  State,  or  the  rights  of 
its  citizens?  His  argument  upon  this  question  is 
worthy  of  great  consideration.  "  Do  the  claims  set 
forth  in  this  return,  so  far  clash  with  the  rights  of 
our  citizens,  and  are  they  so  opposed  to  the  institu- 
tions and  the  essential  interests  of  this  community, 
as  that  the  law  of  the  domicile  must  yield  ?  This, 
as  it  seems  to  me,  is  the  whole  inquiry,  and  it  lies 
within  very  narrow  limits." 

§  230.  "  The  discussion,  however,  has  taken  a  wide 
range,  and  many  considerations  have  been  urged  upon 
us,  which,  in  my  judgment,  have  very  little  to  do  with 
the  case  to  be  decided.  Much  has  been  said  of  the  in- 
justice and  immorality  of  slavery  ;  and  both  moral  and 
political  writers  have  been  summoned  to  our  bar  to  bear 
testimony  to  the  enormities  of  the  system.  Those  con- 
siderations might  very  properly  be  urged,  and  have  their 
influence  elsewhere.  They  might  with  propriety  and 
should  have  been  addressed  to  our  pilgrim  fathers,  when 
they  were  about  to  introduce  the  system,  and  to  bring 
this  foul  stain  upon  our  otherwise  free  institutions.  They 
may  properly  enough  be  urged  upon  the  legislative  de- 
partment of  the  government.  And  I  am  not  about  to 
deny  the  propriety  of  urging  them  upon  the  moral  sense 
and  feelings  of  the  community.  "With  these  topics,  and 
with  the  excitement  that  is  abroad  on  this  subject, 
whether  favorable  or  adverse  to  the  present  claim,  I  can 
have  nothing  to  do.  Sitting  here  to  administer  the  law, 
I  cannot  undertake  to  be  wiser  than  the  laws  and  con- 
stitution of  my  country,  nor  purer  than  those  great  and 
good  men  by  whom  they  were  ordained.  As  a  citizen 
and  as  a  man  I  may  admit  the  injustice  and  immorality 
of  slavery ;  that  its  tendencies  are  all  bad ;  that  it  is 
productive  of  evil,  and  of  evil  only.  But  as  a  jurist,  I 
must  look  at  that  standard  of  morality  which  the  law 
prescribes.  'Whatever,'  says  Chief  Justice  Marshall, 
'  might  be  the  answer  of  a  moralist  to  the  question,  a 


SLAVES    ESCAPING   INTO    OTHER   STATES.  213 

jurist  must  search  for  its  solution  in  those  principles  of 
action,  which  are  sanctioned  by  the  usages,  the  national 
acts,  and  the  general  assent  of  that  portion  of  the  world 
of  which  he  considers  himself  a  part,  and  to  whose  har 
the  appeal  is  made.' 

"  Again,  it  has  been  urged,  that  slavery  is  opposed  to 
the  laws  of  nature  and  of  God ;  that  its  existence  among 
us  is  forbidden  by  our  obligation  to  these  laws ;  and  that 
they  are  paramount  to  the  law  of  the  domicile. 

"  I  may  be  permitted  to  inquire  here,  what  is  the  pre- 
cise meaning  of  this  argument ;  and  how  far  it  is  in- 
tended to  be  carried  ?  Is  it  meant  that  the  whole  law 
of  slavery  is  absolutely  void  ?  And  that  no  obligation 
whatever  can  grow  out  of  it  ?  Is  it  to  be  seriously  urged, 
that  no  obligation,  no  contract,  bottomed  on  slavery,  as 
a  system,  can  be  enforced  in  our  courts  of  justice  ?  Un- 
less the  argument  is  to  be  carried  this  length,  it  is  diffi- 
cult to  see'its  application  to  the  case;  and  before  we  can 
be  called  upon  to  take  this  ground,  we  must  be  asked  to 
denounce  a  system,  which  has  prevailed  among  us  for 
more  than  a  century,  to  blot  out  from  our  statute-book 
the  various  enactments  by  which  it  has  been  recognized 
and  regulated,  and  to  reverse  the  repeated  decisions  of 
this  Court. 

"Again,  it  is  insisted  with  much  apparent  reliance  on 
the  objection,  that  if  we  hold  this  return  to  be  sufficient, 
we  sanction  and  adopt  the  whole  law  of  slavery,  as  it 
exists  in  Georgia,  and  that  we  establish  their  system 
among  us,  with  all  its  odious  and  revolting  features.  I 
cannot  so  understand  the  law.  The  simple  inquiry  upon 
this  demurrer  is,  whether  the  claim  of  the  respondent,  as 
stated  on  the  return,  conflicts  with  our  laws  ?  It  might 
as  well  be  urged,  were  a  native  of  Hindostan  to  come 
here  to  reside  for  a  season,  that  by  allowing  him  to  re- 
tain the  custody  of  his  infant  child,  we  adopted  the 
laws  and  the  customs  of  Hindostan  in  regard  to  that  re- 
lation, and  of  course  must  allow  the  parent  either  to 
sacrifice  his  child  to  his  idols  or  expose  him  to  perish. 

"  And  again :  it  has  been  urged,  that  if  we  suffer  this 
respondent  to  take  his  slave  with  him  to  Georgia,  she 
will  there  be  subjected  to  all  the  rigors  and  injustice  of 
their  system.  This  may  be  true ;  and  we  may  regret  that 
it  is  so ;  but  are  we,  therefore,  to  say  that  she  is  emanci- 
pated ?  The  State  of  Georgia,  in  the  exercise  of  her 


214  LAW  OF  NEGRO   SLAVERY. 

undoubted  rights  as  a  sovereign  State,  has  enacted  laws 
upon  this  subject,  which  she  deems  essential  to  the  secu- 
rity of  her  citizens,  and  the  protection  of  their  interests; 
and  so  long  as  she  enforces  these  laws  within  her  own 
jurisdiction,  we  surely  are  not  to  sit  in  judgment  upon 
them.  If,  indeed,  she  seeks  to  enforce  them  here,  and 
calls  upon  our  tribunals  to  assist  in  so  doing,  we  may 
then,  as  we  are  now  called  upon  to  do,  determine 
whether  their  execution  here  will  conflict  with  our  own 
laws  and  institutions." 

§  231.  In  Pennsylvania,  as  early  as  1780,  an  act 
was  passed  providing  for  the  abolition  of  slavery, 
but  excepting  from  its  operation  "  slaves  attending 
upon  delegates  in  Congress,  foreign  ministers  and 
consuls,  and  persons  passing  through  or  sojourning 
in"  the  State.  In  case  of  sojourners,  it  was  "  pro- 
vided, that  such  slaves  be  not  retained  in  the  State 
longer  than  six  months."  Many  decisions  have  been 
made,  construing  this  statute,  in  none  of  which  have 
the  views  of  the  Court  denied  the  principles  for 
which  we  contend.1 

In  New  York,  Khode  Island,  and  New  Jersey, 
similar  statutes  were  passed  soon  after  the  adoption 
of  the  Federal  Constitution.2 

§  232.  In  Illinois  this  question  underwent  a  most 
searching  and  thorough  examination  in  the  case  of 
"Willard  v.  The  People.3  It  was  well  argued  by  the 
counsel,  and  fully  considered  by  the  Court.  The 
case  made  was  that  of  the  transit  of  a  master  with 

1  See  Butler  et  al.  v.  Delaplaine,  7  Serg.  &  Rawle,  378 ;  Com- 
monwealth v.  Halloway,  6  Binney,  213;  1  Browne,  113;  1  Watts, 
155 ;  4  Yeates,  204 ;  Addis,  284 ;  2  S.  &  R.  305. 

3  1  Revised  Laws  of  New  York,  657 ;  Laws  of  Rhode  Island 
(Ed.  of  1798),  607 ;  Laws  of  New  Jersey,  679. 

s  4  Scammon  Rep.  461-477. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      215 

his  slave  through  the  territory  of  Illinois.  The 
whole  Court  concurred  in  the  opinion,  that  the  mas- 
ter's rights  were  in  no  wise  affected  by  this  transit ; 
and  Justice  Scates,  who  delivered  the  opinion  of  the 
Court,  says,  "  It  would  be  productive  of  great  and 
irremediable  evils  of  discord,  of  heartburnings,  and 
alienation  of  that  kind  and  fraternal  feeling  which 
should  characterize  the  American  brotherhood,  and 
tend  greatly  to  weaken  the  common  bond  of  union 
among  us,  and  our  nationality  of  character,  interest, 
arid  feeling.  It  would  be  startling,  indeed,  if  we 
should  deny  to  our  neighbors  and  kindred  that  com- 
mon right  of  free  and  safe  passage  which  foreign 
nations  would  hardly  dare  deny.  The  recognition 
of  this  right  is  no  violation  of  our  Constitution.  It 
is  not  an  introduction  of  slavery  into  this  State,  as 
was  contended  in  argument,  and  the  slave  does  not 
become  free  by  the  Constitution  of  Illinois,  by  coming 
into  the  State  for  the  mere  purpose  of  passage 
through  it." 

Lockwood,  J.,  and  Wilson,  C.  J.,  while  concurring 
in  the  judgment  of  the  Court,  were  not  satisfied  with 
the  narrow  grounds  on  which  it  was  based.  The 
former  delivered  a  separate  opinion,  in  which  the 
latter  concurred,  placing  the  decision  upon  the  broad 
ground  of  "  comitas  inter  communitates ;"  denying 
that  it  contravened  the  policy  of  the  State,  or  intro- 
duced slavery  therein. 

§  233.  In  Indiana,  a  similar  view  has  been  taken 
of  the  law.  On  a  return  to  a  habeas  corpus,  before 
Justice  Morris,  the  question  was  distinctly  made.  He 
says :  "  By  the  law  of  nature  and  of  nations,  and 
the  necessary  and  legal  consequences  resulting  from 


216  LAW  OF   NEGRO   SLAVERY. 

the  civil  and  political  relations  subsisting  between 
the  citizens  as  well  as  the  States  of  this  federative 
republic,  I  have  no  doubt  but  the  citizen  of  a  slave 
State  has  a  right  to  pass,  upon  business  or  pleasure, 
through  any  of  the  States,  attended  by  his  slaves  or 
servants;  and  while  he  retains  the  character  and 
rights  of  a  citizen  of  a  slave  State,  his  right  to  re- 
claim his  slave  would  be  unquestioned."1 

§  234.  In  Kentucky,  in  an  early  and  leading  case, 
this  doctrine  underwent  investigation,  and  the  dis- 
tinction contended  for,  drawn  clearly  by  the  Court, 
viz. :  that  a  "  fixed  residence,"  or  being  domiciled  in 
a  non-slaveholding  State,  would  operate  to  release 
the  slave  from  the  power  of  the  master ;  but  that  the 
transient  passing  or  sojourning  therein,  had  no  such 
effect.  The  Court  argues  the  question  at  great 
length,  and  upon  the  law  of  nations,  and  adds  :  "  If 
nations,  amidst  all  their  jealousies  and  thirst  for 
power,  could  adopt  such  rules  to  govern  themselves, 
with  regard  to  their  neighbors,  how  much  stronger 
is  the  reason  and  propriety  of  the  rule  when  applied 
between  the  different  branches  of  the  American 
family  ?  Can  it  be  for  a  moment  supposed  that  any 
one  of  them  would  reject  a  principle  so  strongly 
based  in  reason,  propriety,  and  the  nature  of  things?"3 
The  subsequent  decisions  in  Kentucky,  maintain 
clearly  the  distinction  laid  down  in  this  leading 
case.3  In  the  last  case,  before  the  Court  of  Appeals  of 

1  3  Amer.  Jurist,  407. 

3  Eankin  v.  Lydia,  2  A.  K.  Marsh.  467. 

8  Bush's  Kep.  v.  White  and  wife,  3  Monroe,  104 ;  1  Bibb, 
423;  Graham  v.  Strader,  5  B.  Monr.  173;  7  B.  Monr.  635; 
Davis  v.  Tingle  et  al.  8  B.  Monr.  545;  9  B.  Monr.  565.  In  8  B. 


SLAVES   ESCAPING   INTO   OTHER   STATES.  217 

Kentucky,1  all  the  previous  cases  are  ably  reviewed 
by  Chief  Justice  Marshall,  and  the  decisions  de- 
fended both  upon  principle  and  authority. 

§  235.  In  Missouri  there  have  been  numerous 
adjudications.  In  the  early  and  leading  case  of 
Winny  v.  Whiteside,2  the  Court  maintained  that  a 
traveller  through  a  non-slaveholding  territory,  does 
not  thereby  lose  his  property  in  his  slave,  "  nor  do 
we  believe  that  any  advocate  for  this  portion  of  the 
species  ever  seriously  calculated  on  such  a  decision." 
The  true  criterion  was,  whether  the  master,  "  by 
his  length  of  residence,  indicated  an  intention  of 
making  that  place  his  residence,  and  that  of  his 
slave."  In  many  of  the  later  cases  this  true  crite- 
rion is  preserved.3  In  the  case  of  Julia  v.  McKin- 
ney,4  though  the  decision  of  the  Court  is  right  upon 
the  facts,  yet  the  majority  of  the  Court,  in  giving 
their  reasons,  lost  sight  of  the  true  distinction. 
Wash,  Judge,  however,  in  his  dissenting  opinion, 
tenaciously  held  to  the  question  of  intention,  as  the 
criterion ;  and  in  the  subsequent  case  of  Nat  v. 
Buddie,5  the  Court  again  returned  to  their  old  moor- 
ing. In  two  subsequent  cases,  the  Court  seem  to 
adopt  a  new  test,  viz.,  whether  the  master  made  any 
unnecessary  delay  in  the  non-slaveholding  territory, 
thereby  placing  an  incident  and  fact  as  the  criterion, 

Monr.  546,  the  query  is  suggested,  whether  the  owner  of  a  life 
interest  in  a  slave  can,  by  domiciling  him  in  another  State,  defeat 
the  rights  of  the  remaindermen. 

1 9  B.  Monr.  565. 

»  1  Missouri  Rep.  472. 

8  La  Grange  v.  Chouteau,  2  Missouri,  19;  Milly  v.  Smith,  Ibid. 
37;  Ralph  v.  Duncan,  3  Missouri,  194;  Nat  v.  Ruddle,  Ibid.  400. 

*  3  Missouri,  270.  5  Ibid.  400. 


218  LAW  OP   NEGRO   SLAVERY. 

instead  of  the  intention  of  becoming  resident.1  In 
a  still  later  case,  Robert  v.  Melugen,  however,  the 
Court  base  their  decision  upon  the  question  of  inten- 
tion.2 

§  236.  In  Louisiana,  the  true  distinction  was  early 
taken  in  the  case  of  Lunsford  v.  Coquillon.3  The 
Court  state  that  great  stress  was  laid  upon  the  re- 
moval to  Ohio,  "  with  the  intention  of  settling,  and 
it  is  this  circumstance  which  governs  the  case"  There 
has  been  no  variation  in  the  subsequent  decisions.4 

§  237.  In  Virginia,  the  opinions  of  the  courts 
have  been  equally  clear.  Lewis  v.  Fullerton,5  an 
early  case,  established  that  the  removal  of  a  slave 
into  a  non-slaveholding  State,  "fora  mere  transitory 
purpose,  and  with  the  animus  revertendi"  did  not 
effect  the  emancipation  of  the  slave.  And  this  de- 
cision has  been  not  only  followed,  but  distinctly  ap- 
proved in  the  subsequent  cases.6 

§  238.  In  Maryland,  this  question  underwent  the 
earliest  and  perhaps  most  thorough  investigation 
which,  at  that  time,  it  had  ever  received  on  this 
side  of  the  Atlantic.  The  case  arose  in  1799,  upon 
a  negro,  brought  by  Lord  Baltimore  from  England ; 
and  Somersett's  case  was  invoked  to  show  that  the 
mere  fact  of  the  foot  of  a  slave  touching  British  soil, 
worked  an  emancipation.  The  case  was  most  tho- 

1  Rachel  v.  Walker,  4  Missouri,  350 ;  Wilson  v.  Melvin,  Ibid. 
592.  3  9  Miss.  170. 

3  14  Martin's  Rep.  401. 

4  Josephine  v.  Poultney,  1  La.  Ann.  R.  329 ;  Louis  v.  Cabarrus 
et  al.  7  Louis.  Rep.  170.  5  1  Rand.  15. 

6  Hunter  v.  Fulcher,  1  Leigh,  172 ;  Gilmer,  143. 


SLAVES   ESCAPING   INTO    OTHER    STATES.  219 

roughly  and  learnedly  argued  upon  the  law  of  Eng- 
land, the  argument  following,  to  a  great  extent,  the 
course  pursued  by  the  counsel  in  Somersett's  case. 
The  Court  of  Appeals  denied  the  authority  of  that 
case,  and  held  that  the  negro  was  still  a  slave.1  In 
this  case,  the  principle  of  the  comity  of  nations  was 
not  invoked  nor  considered.  The  subsequent  cases, 
however,  seem  to  be  in  accordance  with  this  prin- 
ciple.2 

§  239.  This  review  of  the  decisions  of  the  courts 
of  the  Union,  shows  that  the  weight,  both  of  num- 
bers and  authority,  preponderate  in  sustaining  those 
conclusions  to  which  we  arrived  upon  principle,  and 
we  may  safely  say  that  neither  of  those  Courts 
whose  decisions  are  opposed  to  these  conclusions, 
have  either  met  or  attempted  to  answer  the  argu- 
ments from  which  they  must  inevitably  follow. 
We  may  add,  that  in  all  of  the  States,  it  has  been 
held,  wherever  the  question  arose,  that  upon  the 
slave  being  subsequently  found  within  a  slavehold- 
ing  State,  the  master's  rights  and  authority  were 
not  impaired  by  the  temporary  sojourn  of  the  slave 
within  the  limits  of  a  non-slaveholding  State.3 

1  Mahony  v.  Ashton,  4  Harr.  &  McH.  322. 

8  David  v.  Porter,  4  Harr.  &  McH.  418;  Porter  v.  Butler,  3 
Harr.  &  McH.  168. 

3  Story's  Conf.  of  Laws,  §  96  a  (3d  Ed.);  Collins  v.  America,  9 
B.  Monr.  575 ;  Batty  et  al.  v.  Horton,  5  Leigh,  622 ;  Hunter  v. 
Fulcher,  1  Leigh,  179;  Lewis  v.  Fullerton,  1  Randolph,  15;  Louis 
v.  Cabarrus  et  al.  7  Louisiana,  170;  Graham  v.  Strader,  7  B. 
Monr.  635.  Judge  Tucker,  in  his  opinion,  in  5  Leigh,  622,  seems 
to  lay  stress  upon  the  fact  that  there  was  no  judgment  of  the  Courts 
of  the  free  State,  declaring  the  slave  free.  In  that  event,  he  seems 


220  LAW  OF   NEGRO   SLAVERY. 

to  think  the  judgment  would  be  conclusive  everywhere.  In  this 
opinion,  he  is  opposed  to  Judge  Roane  and  the  whole  Court  of 
Appeals,  in  the  case  of  Lewis  v.  Fullerton,  1  Rand.  15,  where  it 
was  held  that  a  judgment  on  a  habeas  corpus,  in  Ohio,  in  favor  of 
the  slave,  does  not  establish  his  right  to  freedom  in  Virginia.  It 
seems  clear  that  the  judgment  could  not  be  conclusive,  unless  the 
master  was  a  party  to  the  case;  nor,  indeed,  until  Congress  should 
by  law  prescribe  the  effect  of  such  judgments  in  other  States.  See 
also  5  B.  Monr.  173. 


CHAPTER  XII. 

SAME  SUBJECT  CONTINUED. — FUGITIVE  SLAVES,  AND  OF 
THE  RIGHT  OF  THE  MASTER  TO  REMOVE  THE  SLAVE. 

§  240.  HAVING  thus  shown,  upon  principle  and 
authority,  that  the  voluntary  removal  of  a  slave,  by 
the  master,  into  a  non-slaveholding  State,  does  not 
necessarily,  but  only  in  specified  cases,  emancipate 
the  slave,  it  follows,  a  fortiori,  that  the  escape  of  the 
slave  into  a  non-slaveholding  State  would  not  im- 
pair the  master's  rights.1  For  even  in  Holland,  where, 
according  to  Christinaeus  and  Groenewegen,  the 
comity  of  nations  is  disregarded,  when  invoked  in 
behalf  of  a  master,  the  decisions  have  never  been 
extended  to  fugitives ;  on  the  contrary,  they  are  ex- 
pressly withdrawn  from  the  operation  of  the  deci- 
sion.2 

§  241.  In  the  United  States,  this  latter  question 
is  provided  for  in  the  fundamental  law.  The  Consti- 
tution of  the  United  States,  in  the  fourth  Article  and 

1  Louis  v.  Cabarrus  et  al.  7  Louisiana,  170. 

3  Van  der  Linden,  on  the  Laws  of  Holland,  Bk.  I,  ch.  ii,  sect, 
iii,  translated  by  J.  Henry,  and  authorities  there  cited.  In  the 
West  Indies,  prior  to  the  abolition  of  slavery  by  Great  Britain,  the 
extradition  of  fugitives  was  universal.  After  that  time,  the  British 
Islands  became  the  house  of  refuge  for  them ;  the  Governors  re- 
fusing to  deliver  them  up.  Schoelcher,  Colonies  Franchises,  115. 


222  LAW  OF  NEGRO   SLAVERY. 

2d  Section,  providing,  that  "  no  person  held  to  ser- 
vice or  labor  in  one  State,  under  the  laws  thereof, 
escaping  into  another,  shall,  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such 
service  or  labor,  but  shall  be  delivered  up  on  claim 
of  the  party  to  whom  such  service  or  labor  may  be 
due."1 

§  242.  In  1793,  Congress  passed  an  act  for  the 
purpose  of  carrying  this  provision  into  execution.2 
This  act  was  found  to  be  ineffectual,  on  account  of 
submitting  the  owner  to  the  State  Courts  and  Judges 
for  the  adjudication  of  his  rights.  In  1850,  a  more 
stringent  and  effectual  statute  was  passed,  constitut- 
ing Federal  officers  for  the  execution  of  its  provi- 
sions. When  we  come  to  examine  the  master's 
right  to  the  slaves  as  property,  we  may  consider 
more  minutely  the  provisions  of  these  acts,  and  the 
decisions  of  the  Courts  upon  them.3 

§  243.  For  nearly  fifty  years  the  Act  of  1793  was 
executed  and  enforced  without  its  validity  or  con- 
stitutionality being  seriously  questioned.4  In  Mas- 
sachusetts, in  1823,  the  question  was  directly  made 
as  to  its  constitutionality,  and  the  Supreme  Judicial' 

1  Statutes  at  Large  of  U.  S.  vol.  i,  p.  302. 

2  Ibid. 

3  For  the  present,  we  refer  only  to  some  of  the  cases.     See  Hill 
v.  Low,  4  Wash.  C.  C.  Rep.  327 ;  Ex  parte,  Simmons,  Ibid.  396 ; 
Ibid.  461;  Baldwin's  C.  C.  R.  577,  579;  Prigg  v.  Commonwealth 
of  Pa.  16  Peters,  539 ;  Stuart  v.  Laird,  1  Cranch,  299 ;  1  Wheat. 
304 ;  6  Ibid.  264 ;  Jones  v.  Van  Zandt,  2  McLean's  C.  C.  R.  596. 

4  Opinion  of  Judge  Story,  Prigg  v.  Comm.  of  Pa.  16  Peters, 
621 ;  Wright  v.  Deacon,  5  Serg.  &  Rawle,  63 ;  Glen  v.  Hodges,  9 
John.  R.  67;  In  the  matter  of  Clark,  9  Wend.  219;  Jack  v.  Mar- 
tin, 12  Wend.  311. 


SLAVES  ESCAPING  INTO  OTHER  STATES.      223 

Court  were  unanimous  in  affirming  the  validity  of 
the  statute,  although  there  was  a  dissenting  opinion 
upon  a  collateral  point.1  In  New  York,  in  1834, 
the  same  question  came  before  the  Supreme  Court, 
and  the  constitutionality  of  the  act  unanimously 
affirmed.3  Nor  indeed  has  any  court  in  any  of  the 
States  ever  declared  these  acts  to  be  void,  yet  their 
validity  has  been  distinctly  denied  before  the  courts, 
and  though  there  fully  and  unqualifiedly  sustained, 
is  still  denied  even  in  the  highest  legislative  depart- 
ment of  the  government.3  In  Prigg  v.  The  Com- 
monwealth of  Pennsylvania  (1836),  the  question 
was  most  elaborately  discussed  before  the  Supreme 
Court  of  the  United  States ;  and  though  the  Court 
differed  in  their  reasons  for  the  judgment  rendered, 
yet  they  were  unanimous  in  the  opinion  of  the  con- 
stitutionality and  validity  of  the  Act  of  1793.  Judge 
Story,  who  delivered  the  opinion  of  the  majority  in 
that  case,  argues  the  question  with  convincing  abi- 
lity.* In  Jones  v.  Van  Zandt  (1847),  the  Supreme 
Court  of  the  United  States  again  unanimously  affirm 
the  validity  of  the  act. 

1  Commonwealth  v.  Griffith,  2  Pick.  11-19. 

2  Jack  v.  Martin,  12  Wend.  323. 

3  Appendix  to  Cong.  Globe,  vol.  xxv,  p.  1100. 

4  16  Peters,  539-674.     Mr.  J.  Wayne  says  (p.  637),  "  All  of  the 
Judges  concur  in  the  declaration  that  the  provision  of  the  Constitu- 
tion was  a  compromise  between  the  slaveholding  and  the  non-slave- 
holding  States,  to  secure  to  the  former  fugitive  slaves  as  property. 
All  of  the  members  of  the  Court,  too,  except  my  Brother  Baldwin, 
concur  in  the  opinion,  that  legislation  by  Congress,  to  carry  the  pro- 
vision into  execution,  is  constitutional ;  and  he  contends  that  the 
provision  gives  to  the  owners  of  fugitive  slaves  all  the  rights  of 
seizure  and  removal  which  legislation  could  give)  but  he  concurs 


224  LAW   OF  NEGRO  SLAVERY. 

§  244.  With  such  an  unbroken  chain  of  authority 
upon  the  side  of  this  legislation,  it  would  be  an  act 
of  supererogation  in  a  work  of  this  character  to  dis- 
cuss at  length  the  arguments  of  the  objectors.  These 
arguments  are  diligently  collected,  and  most  elabo- 
rately, ingeniously,  and  eloquently  presented,  by  Mr. 
Sumner,  in  a  speech  delivered  before  the  Senate  of 
the  United  States,  on  the  26th  of  August,  1852.  No 
better  reply  need  be  given  to  that  speech  than  that 
contained  in  the  speeches  of  Senators  on  that  occa- 
sion ;  and  more  especially  that  of  Mr.  Badger, 
whose  effort  is  as  distinguished  for  its  logical  reason- 
ing as  its  withering  sarcasm.1  I  cannot  refrain  from 
quoting,  in  this  connection,  from  the  opinion  of  Mr. 
Justice  McLean,  in  Prigg  v.  The  Commonwealth, 
&c.,2  one  portion  of  his  reply  to  the  favorite  argu- 
ment, that  this  clause  in  the  Constitution  is  a  com- 
pact between  the  States,  and  must  be  executed  by  the 
States  and  not  by  the  General  Government.  "  The 
necessity  for  this  provision  was  found  in  the  views 
and  feelings  of  the  people  of  the  States  opposed  to 
slavery ;  and  who,  under  such  an  influence,  could 
not  be  expected  favorably  to  regard  the  rights  of  the 
master.  Now,  by  whom  is  this  paramount  law  to 
be  executed  ?  It  is  contended  that  the  power  to 
execute  it  rests  with  the  States.  The  law  was  de- 
signed to  protect  the  rights  of  the  slaveholder  against 
the  States  opposed  to  those  rights ;  and  yet  by  this 
argument,  the  effective  power  is  in  the  hands  of 

in  the  opinion,  if  legislation  by  Congress  be  necessary,  that  the 
right  to  legislate  is  exclusively  in  Congress." 

1  Appendix  to  Congressional  Globe,  vol.  xxv,  p.  1102,  et  seq. 

2 16  Peters,  661. 


SLAVES   ESCAPING   INTO   OTHER   STATES.  225 

those  on  whom  it  is  to  operate.  This  would  pro- 
duce a  strange  anomaly  in  the  history  of  legislation. 
It  would  show  an  inexperience  and  folly  in  the 
venerable  framers  of  the  Constitution,  from  which, 
of  all  public  bodies  that  ever  assembled,  they  were, 
perhaps,  most  exempt." 

§  246.  Among  the  Saxons,  although  the  master 
had  a  perfect  dominion  over  the  slave  within  the 
kingdom,  yet,  in  many  cases,  and  especially  upon 
the  conversion  of  the  slave  to  Christianity,  the  mas- 
ter was  prohibited  from  transporting  and  selling  him 
without  the  realm,  "et  maxime  infidelibus,  ne  anime 
in  dampnacionem  vendantur,  pro  quibus  Christus 
vitam  impendit."1  And  thus  the  Saxon  slave  en- 
joyed one  of  the  fruits  of  liberty,  the  right  of  re- 
maining within  the  kingdom.  So,  also,  the  villains 
regardant,  in  England ;  the  colliers,  in  Scotland  ;  the 
coloni  or  adscriptitii  glebae,  of  Rome ;  the  helots  of 
Sparta,  and  the  penestse,  of  Thessaly,2  while  under 
the  dominion  of  the  master,  could  not  be  removed 
from  the  land  to  which  they  were  attached.  The 
Roman  slaves  generally,  however,  might  be  removed 
by  the  master  at  will,  without  the  realm.  Such  is 
the  condition  of  the  African  slave  in  America. 

1  Ancient  Laws,  &c.  145,  162,  208 ;  Laws  of  Ethelred,  viii,   § 
5 ;  Laws  of  King  Cnut,  Sect,  iii ;  Laws  of  "William  the  Conqueror, 
§41. 

2  Smith's  Diet,  of  Greek  and  Koman  Antiq.  "  Servus." 

15 


CHAPTER  XIII. 

OF   THE   PRIVILEGE    OF  A   SLAVE   TO   BE   A   WITNESS. 

s 

§  247.  ONE  of  the  consequences  of  the  want  of 
liberty  in  the  slave  is  his  disqualification  to  be 
a  witness  in  cases  affecting  the  rights  of  freemen. 
This  disqualification  has  been  the  prolific  theme  for 
much  complaint  and  abuse  of  the  system.  Mr. 
Stephen,  and  his  imitator  and  copyist,  Mr.  Stroud, 
have  declared  the  rule  unparalleled,  and  without 
"  the  authority  of  any  country,  either  ancient  or 
modern."1  They  deny  positively  its  origin  in  the 
common  law,  and  refer  it  to  the  civil  law,  declaring, 
at  the  same  time,  that  we  have  increased  its  rigors. 
Yet,  we  find  it  to  exist  wherever  we  find  negro  sla- 
very, and  even  where  slavery  has  ceased,  the  dis- 
qualification is  continued  in  some  of  the  United 
States,2  showing  that  it  is  founded  not  only  upon 
the  servile  condition  of  the  negro,  but  also  upon  his 
known  disposition  to  disregard  the  truth.  We  shall 
examine  the  correctness  of  the  charge  made  by  Mr. 
Stephen  and  Mr.  Stroud. 

1  Stephen,  on  West  Indian    Slavery,  166,    et   seq.;    Stroud's 
Sketch,  &c.  70,  et  seq. 

2  Ohio,  Illinois,  Iowa,  &c. 


PRIVILEGE    OF   SLAVE   TO    BE   A   WITNESS.  227 

§  248.  How  stands  the  common  law  ?  The  term 
"  law,"  according  to  the  common  law,  is  defined  to 
be  "  a  freeman's  privilege  of  being  sworn  in  Court 
as  a  juror  or  witness."  A  freeman  only  was  deemed 
to  be  "othesworth"  and  this  privilege  of  being  sworn 
was  one  of  the  distinctive  traits  and  characteristics 
of  a  "liber  et  legalis  homo."  It  was  otherwise  called 
"  frank  law,"  and  sometimes  "  the  law  of  the  land."1 
So  Bracton,  speaking  of  a  freeman's  loss  of  this  privi- 
lege, says :  "  Perpetuam  infamiam  incurrant  et  legem 
terrge  amittant,  et  ita  quod  nunquam  postea  ad  sacra- 
mentum  admittantur,  quia  de  cetero  non  erunt  otlies- 
worth  nee  ad  testimonium  recipientur."2  "  They 
incur  perpetual  infamy  and  lose  their  privilege  of 
the  law,  so  that  never  afterwards  are  they  admitted 
to  the  sacrament,  and,  among  things,  shall  not  be 
' othesworth,'  or  received  as  witnesses."  This  was  a 
part  of  the  punishment  of  jurors  who  had  been  con- 
victed of  a  false  verdict.3  So  Blackstone  says  that 
in  the  "  wager  of  law"  or  "  trial  by  battle,"  if  either 
party  pronounced  the  horrible  word  "  craven,"  he 
was  condemned  "amittere  liberam  legem,"  and  there- 
fore never  to  be  put  upon  a  jury,  or  admitted  as  a 
witness  in  any  cause.4  And  this  is  probably  the 

i  Burrill's  Law  Dictionary,  Frank  Law;  Jacob's  Law  Diet. 
Frank  Law;  see  also  Cromp.  Jur.  156.  The  laws  of  King  With- 
raed  expressly  forbade  the  "theow,"  or  slave,  his  oath,  §  23;  An- 
cient Laws  and  Institutes,  18. 

3  Bracton,  folio,  292  b. 

3  Glanville,  Lib.  II,  c.  iii;  Co.  Litt.  294  b. 

4  3  Black.  Comm.  340 ;  see  to  same  effect,  Co.  Litt.  6  b ;  Fortesc. 
ch.  xxvi. 


228  LAW  OF   NEGRO   SLAVERY. 

true  origin  of  the  rule  that  excludes  from  testifying 
persons  convicted  of  infamous  offences.  Fleta  gives 
this  as  the  reason  :  "  Repellitur  autem  sacramento 
infamis,  qui  alias  convictus  fuerit  de  perjurio,  quia 
jam  legem  liberam  amisit,  nee  ulterius  dignus  est 
legis  libertate  gaudere  quia  publice  in  legem  com- 
misit."1  "The  infamous  person  convicted  of  perjury 
is  denied  the  sacrament,  because  he  has  lost  his 
privilege  of  the  law,  nor  is  he  ever  worthy  to  enjoy 
this  liberty,  because  of  this  public  disregard  of  it." 

§  249.  Subsequently,  when  feudal  tenures  were 
substituted  for  the  former  servitude,  and  the  villain 
gradually  became  to  be  considered  as  a  freeman,  as 
against  every  one,  save  his  lord,  it  seems  that  the 
privileges  of  a  freeman  (and  among  others,  that  of 
being  sworn  as  a  witness),  were  extended  to  him. 
This,  however,  is  itself  a  matter  of  doubt,  and  it  is 
very  possible  that  it  was  not  until  tenure  by  vil- 
lanage  fell  into  entire  disuse,  that  the  villain  was 
admitted  as  a  witness.2 

§  250.  The  civil  law  in  excluding  the  testimony 
of  slaves,  gave  precisely  the  same  reason  for  the  ex- 
clusion as  the  common  law  :  "Etenim  testis,  homo 
liber  esse  debet."3  The  civil  law  extends  the  dis- 

1  Fleta,  Lib.  IV,  cap.  viii,  §  2.  This  is  a  much  more  sensible 
reason  for,  and  origin  of  the  rule,  than  the  one  given  by  Baron 
Gilbert,  in  his  Treatise  on  Evidence,  142,  143,  and  which  has 
been  adopted  by  subsequent  writers.  See  McNally,  Ev.  207 ;  1 
Phillips,  on  Ev.  14,  15 ;  1  Starkie,  on  Ev.  83 ;  1  Greenl.  on  Ev. 
§372. 

8  Hallam's  Mid.  Ages,Pt.  II,  ch.  ii,  p.  91,  n.;  Smith,  on  Master 
and  Servant,  Introd.  p.  28. 

•  Huber,  Pralec.  Lib.  XXV,  tit.  v,  §  2. 


PRIVILEGE    OF   SLAVE   TO   BE   A   WITNESS.  229 

credit  arising  from  the  menial  occupation,  even  to 
the  hireling, — domestic!  testimonii  fides  improbatur.1 

§  251.  Whether  founded  upon  the  same  reason  or 
not,  certain  it  is  that  this  rule  of  exclusion  has  been 
universal,  wherever  slavery  or  villanage  has  ex- 
isted.2 By  the  Code  Noir,  the  evidence  of  slaves  was 
excluded  in  all  cases  in  the  French  Colonies,  whether 
for  or  against  freemen  or  slaves.  The  Judges  were 
allowed  to  hear  their  evidence,  as  suggestions  to 
illustrate  other  testimony,  but  they  were  prohibited 
from  drawing  thence,  "  aucune  presomption,  ni  con- 
jecture, ni  adminicule  de  preuve."3  The  same  rule 
obtained  in  the  British  West  Indies,  and  it  is  a  little 
remarkable  that  the  commissioners  appointed  to  in- 
quire into  their  condition,  with  a  view  to  meliorat- 
ing the  status  of  the  slave,  hesitated  to  recommend 
a  different  rule,  except  in  criminal  cases.4  Among 
the  Jews,  Josephus  informs  us  that  the  testimony 
of  servants  was  rejected  "  on  account  of  the  igno- 
bility  of  their  soul."5 

§  252.  So  universal  was  this  rule  of  exclusion  in 

1  Leg.  3,  Cod.  4,  20. 

2  In  Greece.     See  Becker's  Charicles,  278  ;  Recueil  des  Histo- 
riens,  torn,  xiv,  Pref.  p.  65;  Hallam's  Mid.  Ages,  Pt.  II,  ch.  ii; 
Taylor's  Law  Glossary,  425 ;  Du  Cange,  Glossary,  Voce  "Servus," 
vol.  vi,  p.  451;  Potgiesser,  De  Statu  Serv.  Lib.  I,  cap.  iii. 

3  Code  Noir,  Art.  30.    By  the  French  Civil  Code,  the  domestique 
or  menial  servant  is  disqualified  as  a  witness;  the  Court,  in  its  dis- 
cretion, being  allowed  to  hear  his  evidence.     Touillier,  Droit  Civil 
Frangais,  vol.  ix,  p.  496. 

4  Substance  of  the  Three  Reports,  p.  450  (London,  1827). 

5  Antiquities  of  the  Jews,  Bk.  IV,  ch.  viii,  §  15.     Mr.  Stroud 
doubts  the  truth  of  this,  because  Deuteronomy  is  silent  on  this 
subject.     Sketch,  &c.  p.  69,  note. 


230  LAW  OF    NEGRO    SLAVERY. 

the  middle  ages,  that  the  Church  specified  as  an  ele- 
ment of  its  early  persecution  the  admission  against 
them  of  the  testimony  of  slaves.1  And  afterwards, 
by  their  decrees,  the  Pope  rejected  slaves  as  accusers 
and  witnesses.2 

§  253.  In  the  United  States  the  rule  is  enforced, 
without  exception,  in  all  cases  where  the  evidence 
is  oifered  for  or  against  free  white  persons.3  In  most 
of  the  States  this  exclusion  is  by  express  statutes.4 
In  others,  by  custom  and  the  decision  of  the  Courts.5 
In  all  the  slaveholding  States,  and  in  Ohio,  Indiana, 
Illinois,  and  Iowa,  by  express  statute,  the  rule  has 
been  extended  to  include  free  persons  of  color,  or 
emancipated  slaves.6  This  is  right  upon  principle, 
as  we  shall  see  hereafter,  when  we  come  to  consider 
the  effect  of  manumission  upon  the  status  of  the 
slave.  In  all  the  slaveholding  States  the  negro  is 
a  competent  witness  in  cases  where  slaves  or  free 
negroes  are  the  only  parties.7  And  this  testimony 

'  Neander's  Hist,  of  the  Church,  Translation,  vol.  i. 
3  See  Bishop  England's  Letters  to  Forsyth,  42,  quoting  decree 
of  Stephen  I,  and  others. 

3  Winn.  Adm.  &c.  v.  Jones,  6  Leigh,  74. 

4  Civil  Code,  Louisiana,  Art.  177 ;  N.  C.  Kev.  Stat.  583  ;  Kev. 
Code  of  Virginia,  663;   Dorsey's  Laws  of  Maryland,  56,  564; 
Stat.  at  Large  of  S.  C.  vi,  489 ;  vii,  427;  Hutchinson's  Missis- 
sippi Code,  515. 

5  In  Georgia.     Berry  v.  The  State,  10  Geo.  519.     See  provision 
in  Alabama  Code,  §  3318. 

6  Jordan  v.  Smith,  14  Ohio  Rep.  199 ;  Rusk  v.  Sowerwine,  3 
Har.  &  J.  97. 

7  The  State  v.  Samuel,  a  slave,  2  Dev.  &  Bat.  177.     In  Dela- 
ware, the  testimony  of  free  negroes  is  admitted  on  criminal  prose- 
cutions, in  some  cases.     Rev.  Code  of  1852,  p.  381.     In  some 
States,  the  testimony  of  a  single  negro  must  be  corroborated.     N. 


PRIVILEGE    OF    SLAVE    TO    BE    A   WITNESS.  231 

has  been  allowed  even  where  a  white  person  has 
been  vouched  upon  his  warranty  by  one  of  the 
parties.1  In  suits  where  negroes  are  the  only  parties, 
the  same  rules  of  evidence  govern,  as  to  competency 
and  admissibility  and  relevancy,  as  in  ordinary  cases, 
except  perhaps  that  marriage  not  being  recognized 
among  them,  that  quasi  relation  does  not  exclude 
the  evidence  of  either.2 

§  254.  The  negro  being  excluded  as  a  witness, 
his  declarations  to  others,  as  a  general  rule,  are  of 
course  inadmissible.3  There  are  exceptions,  however, 
founded  partly  in  the  necessity  of  the  case ;  in  other 
cases  the  declarations  are  admissible  upon  other  rules 
of  evidence.  Thus,  the  declarations  of  a  negro  to  a 
physician  or  others  as  to  the  symptoms  of  his  disease, 
or  the  seat  of  his  sufferings,  are  admissible  in  evi- 
dence ;4  but  his  declarations  as  to  the  cause  of  his 
injury  or  disease,  or  as  to  the  length  of  time  of  its 
existence  or  duration,  are  inadmissible.5 

§  255.  And  again,  if  a  white  person  refers  to  a 
negro  for  information,  the  declarations  of  the  negro, 
under  such  circumstances,  are  admissible  against  the 
person  so  referring,  he  having  thereby  given  credit 
to  and  adopted  as  his  own  the  statement  of  the 

C.  Kev.  Stat.  581;  Stat.  at  Large  of  S.  C.  vii,  356;  Dorsey's 
Laws  of  Maryland,  92. 

1  Meechum  v.  Judy,  4  Miss.  361. 

2  The  State  v.  Samuel,  2  Dev.  &  Bat.  177 ;  The  State  v.  Ben, 
1  Hawks,  434.  3  Tumey  v.  Knox,  7  Monroe,  91. 

4  Opinion  of  Owsley,  J.,  in  Tumey  v.  Knox,  7  Monr.  92;  Brown 
v.  Lester,  Ga.  Dec.  Pt.  I,  p.  77 ;  McClintock  v.  Hunter,  Dudley, 
S.  C.  327 ;  Marr  v.  Hill,  10  Mo.  320. 

5  Tumey  v.  Knox,  7  Monroe,  90  ;  McClintock  v.  Hunter,  Dud- 
ley, S.  C.  327. 


LAW  OF  NEGRO   SLAVERY. 

negro.  So  if  a  person  accused  of  a  crime,  agrees 
that  a  negro  shall  tell  all  he  knows,  the  declarations 
of  the  negro  in  his  presence,  and  uncontradicted  by 
him,  are  admissible  in  evidence  against  him.1  The 
silence  of  a  party,  as  a  general  rale,  however,  would 
not  make  the  declarations  of  a  negro  in  his  presence 
admissible  against  him,  for  the  law  would  not  require 
of  a  free  white  person  to  deny  the  misstatements  of 
every  negro  in  his  presence.  The  circumstances 
must  be  such  as  to  require  the  party,  as  a  reasonable 
man,  to  pay  attention,  and  give  a  denial  to  the  state- 
ments of  the  negro,  in  order  to  render  them  admis- 
sible in  evidence  against  him.  Where  a  conversa- 
tion is  heard  between  a  negro  and  a  white  person,  the 
remarks  of  the  negro  may  be  given  in  evidence  against 
the  white  person,  in  all  cases,  by  way  of  inducement, 
and  as  illustrating  the  remarks  of  the  white  person.2 
So,  also,  it  is  admissible  for  a  witness  to  state  that 
he  was  induced  to  waylay  a  party,  suspected  of  a 
design  to  commit  a  felony,  from  information  derived 
from  a  negro,  this  being  only  in  explanation  of  the 
witness's  own  conduct.3  And,  it  has  been  held  that 
on  the  trial  of  an  accessory  to  a  murder  committed 
by  slaves,  the  confessions  of  guilt  by  the  slaves  were 
admissible  to  prove  that  fact.4 

r7"?  §  256.  That  this  universal  exclusion  of  a  negro 

\   from  testifying  may,  in  many  supposable  cases,  ope- 

I  rate  harshly  and  to  the  defeat  of  justice,' especially 

I  in  reference  to  the  cruel  treatment  of  slaves,  is  an 

undeniable  fact ;  and  yet  it  is  equally  true,  that  the 

f  Berry  v.  The  State,  10  Ga.  520,  521.  3  Ibid. 

8  Whaley  v.  The  State,  11  Ga.  123. 
*  State  v.  Simes,  2  Bailey,  29. 


I 


PRIVILEGE   OF   SLAVE   TO    BE   A   WITNESS.  233 

indiscriminate  admission  and  giving  credit  to  negro  ' 
testimony  would  not  only,  in  many  cases,  defeat 
justice,  but  would  be  productive  of  innumerable 
evils  in  the  relation  of  master  and  slave.  Even 
Mr.  Stephen  admits  that  "  it  might  be  right  even 
wholly  to  exclude  the  testimony  of  slaves,  when  the 
master  has  any  interest  in  the  cause.  They  ought 
never,  perhaps,  to  be  heard,  but  when  he  himself  is 
no  party,  and  would,  if  called  as  a  witness,  be  free 
from  every  exception."1  He  admits  further,  that  the 
testimony  should  always  be  wanting  in  credit,  because 
of  the  "  general  presumption  against  his  moral  cha- 
racter, more  especially  in  the  article  of  veracity."1,. 
That  the  negro,  as  a  general  rule,  is  mendacious,  is 
a  fact  too  well  established  to  require  the  production 
of  proof,  either  from  history,  travels,  or  craniology.1 

§  257.  Perhaps  it  might  be  well  to  permit 
negro  to  testify  as  to  the  cruel  treatment  of  himself 
or  his  fellows  by  persons  other  than  his  master,  when 
no  competent  white  witness  is  present  to  testify  as 
to  the  transaction.  In  such  case,  the  credibility  of 
his  testimony  should  be  specially  submitted  to  the 
jury,  and  the  accused  should  be  allowed  to  state, 
under  oath,  his  own  version  of  the  transaction,  the 
credibility  of  which  testimony  should  also  be  sub- 
mitted to  the  jury.  Under  such  a  rule,  in  most 
cases,  the  jury  would  arrive  at  a  very  correct  ver- 
dict, notwithstanding  the  objectionable  character  of 
all  the  evidence.  In  some  such  extreme  cases,  it 
appears  that  the  civil  law  admitted  the  testimony 

1  Stephen,  on  West  Ind.  Slav.  vol.  i,  p.  177.  a  Ibid. 

8  See  Jones,  on  the  Religious  Instruction  of  Negroes. 


234  LAW   OF   NEGRO   SLAVERY. 

of  slaves.  "  Causa  sit  ardua,  ad  reipublicoB  spectans 
utilitatem,  aut  alise  desint  probationes."1  But  this 
did  not  extend  to  civil  cases.2  And,  in  ancient 
Athens  also,  in  cases  of  murder,  the  testimony  of 
slaves  was  received  with  credit.3 

1  Voet,  Comm.  ad  Pandect,  Lib.  XXII,  tit.  v,  §  2. 

2  Heinec.  De  Lubric.  Jur.  Sup.  Exer.  xvii,  §  17. 

3  Plato,  Leg.  xi,  937 ;  see  Becker's  Charicles,  270. 


CHAPTER  XIV. 

OF   THE  RIGHT   OF   PRIVATE   PROPERTY. 

§  258.  OF  the  other  great  absolute  right  of  a  free- 
man, viz.,  the  right  of  private  property,  the  slave  is 
entirely  deprived.  His  person  and  his  time  being 
entirely  the  property  of  his  master,  whatever  he 
may  accumulate  by  his  own  labor,  or  is  otherwise 
acquired  by  him,  becomes  immediately  the  property 
of  his  master.1  If  he  has  several  masters,  his  gains 
belong  to  them  all  pro  rata.2  Though  our  law  allows 
of  no  peculium  to  the  slave,  yet,  as  a  matter  of  fact, 
such  peculium  is  permitted,  ex  gratid,  by  the  master.3 
And  such  was  the  Roman  law,  for  the  peculium  of 
the  slave  was  there  a  matter  not  of  right  but  of 
favor ;  of  which  the  master  might  at  any  time  de- 
prive him.4 

§  259.  Such  was  the  condition  also  of  the  English 

1  Jackson  v.  Loovey,  5  Cow.  397 ;  1  Bailey,  633  ;  2  Hill's  Ch. 
397  j  2  Rich.  424;  6  Humph.  299;  1  Stewart,  320;  5  B.  Monr. 
186. 

3  Heinec.  Elem.  Jur.  Pars  VII,  Lib.  XLV,  §  26. 

3  Mr.  Stephen  admits  the  fact  to  exist  in  the  West  Indies,  vol. 
i,  61.     Louisiana  allows  the  peculium  by  statute. 

4  Institutes,  Lib.  II,  tit.  ix,  §  3;  Gaius,  i,  52;  Domat.  Prel.  Bk. 
tit.  ii,  sect,  ii,  §  97 ;  Huberi  Prsel.  Lib.  II,  tit.  ix,  162  e ;  Heinec. 
Elem.  Jur.  Lib.  Ill,  tit.  xviii;  Smith's  Diet,  of  Antiq.  "Servus." 


236  LAW   OF  NEGRO   SLAVERY. 

villain,  for,  "  quicquid  acquiritur  servo,  acquiritur 
domino,"  saith  my  Lord  Coke.1  Fleta  gives  the  rule 
in  almost  the  same  words :  "  Quicquid  per  ipsum 
juste  acquiritur, id  domino  acquiritur;  et  cum  ipse  a 
domino  suo  possideatur,  nihil  possidere  potest,  nee 
aliquid  proprium  habere."2  So  also  Glanville  :  "  No- 
tandum  est  quod  non  potest  aliquis,  in  villenagio 
positus,  libertatem  suam  propriis  denariis  suis  quse- 
rere,"  &c.  "  It  is  to  be  remembered  that  a  villain 
cannot  even  seek  to  purchase  his  own  liberty  with 
his  own  money."3  The  villain  might  acquire  and 
convey,  however,  provided  he  did  so  before  the  lord 
took  possession  of  his  acquisitions.4  The  earnings 
of  an  apprentice,  and  everything  purchased  there- 
with, in  the  same  way,  belong  to  his  master.5 

§  260.  The  same  rule  prevails  in  every  country 
where  negro  slavery  exists.  In  the  Spanish,  Danish, 
and  French  West  Indian  colonies,  by  express  statute, 
the  slave  was  permitted  to  accumulate  enough  to 
purchase  his  freedom.6  Among  the  Germans,  the 
famines  proprii  originally  could  hold  no  property.7 
At  a  later  day  they  were  allowed  to  accumulate  and 
hold  all  exceeding  the  stipulated  wages,  "  operas  et 
censum"8  The  same  rule  exists  in  the  East  Indies.9 

1  Co.  Litt.  Lib.  II,  §  172.  2  Lib.  IV,  ch.  xi,  §  4. 

8  Lib.  V,  ch.  v.  *  Co.  Litt.  Lib.  II,  §  173. 

•Smith,  on  Master  and  Servant,  80,  81;  Salk.  68;  Reaves, 
Dom.  Rel.  343. 

8  Schrelcher,  Colonies  Franchises,  and  Colonies  Etrangeres,  vol. 
ii;  Stephen,  on  West  Indian  Slavery,  i,  pp.  60, 119,  and  authorities 
there  cited;  Gurney's  West  Indies. 

7  Potg.  De  Statu  Serv.  Lib.  II,  cap.  x. 

8  Hcinec.  Elem.  Jur.  Lib.  I,  §  85. 

9  Adam,  on  Slavery  in  India,  246,  247. 


THE  RIGHT  OF  PRIVATE  PROPERTY.        237 

§  2G1.  If  a  slave  obtains  valuable  property,  by 
finding,  his  possession  is  considered  that  of  his  mas- 
ter ;  and  the  master  may  maintain  an  action  against 
any  one  who  receives  or  forcibly  takes  such  property 
away  from  the  slave.1  If  the  slave  be  in  the  posses- 
sion of  one  not  his  master,  e.  g.,  a  hirer,  according 
to  the  Roman  law,  the  possessor  could  claim  no  gains 
of  the  slave,  except  it  arose  from  his  own  labor  or 
by  means  of  the  property  of  the  possessor.3 

§  262.  The  slave  in  Rome  could  not  assent  to 
take  a  legacy,  except  by  his  master's  order;  and  in 
such  case,  the  legacy  vested  immediately  in  the 
master.3  Certain  slaves  who  had  no  master,  could 
not,  therefore,  give  assent,  and  the  legacy  was  simply 
void.4  If  a  legacy  were  given  to  an  African  slave, 
there  seems  to  be  no  reason  why  the  legacy  should 
be  void,  and  if  delivered  by  the  executor  to  the 
slave,  the  title  would  vest  immediately  in  the 
master.5  The  master,  however,  cannot  bring  suit 
for  such  a  legacy,  as  he  cannot  bring  suit  upon  an 
executory  contract  with  his  slave.6  So  if  a  chattel 

1  Brandon  v.  The  Huntsville  Bank,  1  Stewart,  320^Fable  v. 
Brown  Exr.  2  Hill's  Ch.  396. 

8  Ulpian,  Frag.  tit.  xix ;  Inst.  Lib.  II,  tit.  ix,  §  4. 

8  Gaius,  ii,  87,  et  seq.;  Inst.  Lib.  II,  tit.  ix,  §  3;  Heinec.  Elem. 
Jur.  Lib.  II,  tit.  xiv,  §  536. 

4  Smith's  Diet,  of  Antiq.  "Servus,"  and  authorities  there  cited. 

5  Williams  v.  Ash,  1  How.  U.  S.  1.     By  the  Civil  Code  of 
Louisiana,  a  legacy  to  one  occupying  the  position  of  a  statuliber 
was  good,  and  was  preserved  for  him  till  he  became  free.     If  he 
died  before  this  time,  it  reverted  to  the  donor  and  his  heirs.     Arts. 
193, 195. 

•  Fable  v.  Brown  Exr.  2  Hill's  Ch.  R.  378,  396;  Hall  v.  Mul- 


233  LAW   OF   NEGRO   SLAVERY. 

were  given  and  delivered  to  a  slave,  the  title  thereto 
would  vest  in  the  master;  and  it  seems  if  land  were 
conveyed  to  a  slave,  and  possession  given,  by  parity 
of  reasoning,  the  master  would  be  seized  of  the 
land.1 

§  263.  A  slave  cannot  take  by  descent,  there 
being  in  him  no  inheritable  blood.2  This  was  true 
of  the  Roman  slave :  they  were  not  objects  of  cogna- 
tion or  affinity.3  The  same  provision  is  inserted  in 
the  Civil  Code  of  Louisiana.  By  it,  however,  the 
succession  to  the  estate  of  free  persons,  related  to 
the  slave  and  which  the  slave  would  have  inherited 
had  he  been  free,  may  pass  through  him  to  a  manu- 
mitted descendant.4 

§  264.  The  slave  not  being  capable  of  acquiring 
property,  it  follows,  that  he  cannot  convey  or  give 
it  away.  Thus,  Fleta,  in  enumerating  those  who 
cannot  make  donations,  expressly  includes  slaves.5 

lin,  5  Har.  &  J.  190 ;  Leech  v.  Cooley,  6  S.  &  M.  93  j  aliter, 
Alston  v,  Coleman  et  al.  7  Ala.  N.  S.  795;  5  How.  (Missis.), 
305;  Trotter,  Admr.  v.  Blocker  and  wife,  6  Porter,  269. 

1  Per  Harper,  C.   in  Fable  v.  Brown  Exr.  2  Hill,  Ch.  E.  396. 
See  also  remarks  of  Colcock,  J.,  in  Gregg  v.  Thompson,  2  Kep. 
Cons.  Ct.  332. 

2  Jackson  v.  Lervey,  5  Cowen,  397 ;  Opinion  of  Dulany,  1  Har. 
&  McH.  560,  561. 

3  Taylor's  Elements  of  Civil  Law,  429 ;  Heinec.  Antiq.  Rom. 
Lib.  II,  tit.  vii,  §  1 ;  Opera,  torn,  iv,  p.  402 ;  and  also  of  the 
German,  Potgies.  De  Stat.  Serv.  Lib.  II,  cap.  xi.     This  was  only 
partially  true  of  the  agrestic  slaves.     Their  children  remained  on 
the  land,  and  inherited  all  agricultural  tools  and  household  goods. 
Ibid.  §  23. 

*  Civil  Code,  Art.  176.     From  this  right  of  the  master  arose 
the  feudal  doctrine  of  mortuaries.     Ibid. 
5  Lib.  Ill,  cap.  iii,  §  10. 


THE   RIGHT    OF   PRIVATE   PROPERTY. 

As  a  consequence,  a  slave  cannot  make  a  testament, 
and  this  was  true  even  in  those  nations  where  the 
slave  was  allowed  his  peculium;  on  his  death,  it 
belonged  to  his  master.1 

*  Taylor's  Law  Glossary,  note  to  Servitus  est,  &c. ;  Potg.  De 
Statu  Serv.  Lib.  II,  cap.  xi. 


CHAPTER  XV. 

OF  CONTRACTS   BY  SLAVES,  AND  HEEEIN  OF  MARRIAGE. 

§  265.  IN  this  connection  we  may  properly  notice 
another  disability  of  the  slave,  and  that  is,  his  in- 
ability to  contract,  or  to  be  contracted  with.1  In 
this  respect  the  Roman  law  differed  from  ours  to 
this  extent,  that  the  pecidium  of  the  slave  might 
be  reached  by  his  creditors,  and  in  the  event  of  sub- 
sequent manumission,  the  creditors  might  prosecute 
their  debts,  previously  contracted.3  Sometimes, 
also,  it  was  agreed  between  the  Roman  master  and 
his  slave,  that  the  slave  should  purchase  his  freedom 
with  his  peculium,  when  it  amounted  to  a  certain 
sum,  and  it  would  seem  as  if  such  contracts  were 
enforced.3  These  privileges,  however,  were  ex  gratia. 
Strictly  the  slave  could  acquire  nothing  by  contract, 
"  Servus  nee  persona  est,  nee  sibi  quidquam  adquirit, 
sed  domino.  Ergo  et  stipulatione  sibi  nihil."4 

1  Hall  v.  Mullin,  5  Har.  &  J.  190;  Gregg  v.  Thompson,  2  Hep. 
Con.  Ct.  S.  C.  331  ;  Jenkins  v.  Brown,  6  Humph.  299 ;  5  Cowen, 
397;  Emerson  v.  Howland  et  al.  1  Mason,  51;  Bland  and  another 
v.  Bowling,  9  Gill  &  J.  27. 

8  Smith's  Diet,  of  Gr.  and  Rom.  Ant.  "  Servus/'  and  authorities 
cited.  Inst.  Lib.  IV,  tit.  vi,  de  Actionibus,  §  10. 

»  Tacit.  Ann.  xiv,  42. 

4  Heinec.  Elem.  Jur.  Lib.  Ill,  tit.  xviii. 


CONTRACTS    BY   SLAVES,    AND    OF   MARRIAGE.          241 

§  266.  In  this  respect,  also,  our  slave  differs  from 
the  ancient  villain,  who  might  contract,  and  enforpe 
his  contracts,  even  as  against  his  lord.1  The  same 
seems  to  be  true  of  the  Russian  serf,2  the  German, 
and  the  Polish  slave.3  But  this  principle  is  true  of 
the  African  slave,  wherever  he  exists.4 

§  267.  Hence,  it  follows,  that  an  agreement  by 
the  master  with  his  slave,  to  give  to  the  slave  all  of 
his  earnings,  beyond  stipulated  wages,  is  not  binding 
on  the  master ;  and,  however  it  may  be  opposed  to 
good  morals,  the  master  can  sue  for  and  recover  such 
earnings  from  a  third  person,  with  whom  they  have 
been  deposited  by  the  slave.5  If,  however,  these 
earnings  were  accumulated  by  the  slave,  prior  to  the 
purchase  by  his  master,  they  belong  to  his  former 
owner,  and  do  not  pass  with  the  title  to  the  slave.6 
If  the  depositary  of  the  slave,  at  his  request,  invest 
the  fund  in  real  or  personal  property,  taking  the  title 
in  his  own  name,  the  master  cannot  recover  the  pro- 
perty, nor  make  the  purchaser  a  trustee  for  him.  He 
can  only  recover  the  sum  deposited  by  his  slave.7 

1  Co.  Litt.  Sect.  177;  Bro.  Abr.  tit.  Villenage,  pi.  14,  50,  etc. 

2  The  Knout  and  The  Russians. 

8  Heinec.  Elem.  Jur.  Lib.  I,  §  85 ;  Potgies.  De  Statu  Servorum, 
Lib.  II,  cap.  ii,  §  13 ;  Wraxall's  Memoirs  of  Court  of  Berlin, 
vol.  ii,  let.  21. 

4  Stephens,  on  West  Indian  Slavery,  58. 

B  Jenkins  v.  Brown,  6  Humph.  299;  Gist  v.  Toohey,  2  Rich. 
425. 

6  Shanklin  v.  Johnson,  9  Ala.  N.  S.  275.     This  authority  sus- 
tains only  the  latter  proposition.     The  former  is  equally  true. 

7  Shanklin  v.  Johnson,  9  Ala.  N.  S.  271.     The  case  of  Sally  v. 
Beatty,  1  Bay,  260,  extended  this  principle  very  far;  "farther," 
says  Judge  O'Neal,  2  McMul.  471,  "than  I  desire  to  go."     Both 

16 


242  LAW  OP   NEGRO   SLAVERY. 

§  268.  If  the  contract  with  the  slave  be  fully  exe- 
cuted, the  property  conveyed  to  the  slave  becomes 
instanter  the  property  of  the  master ;  and  the  pro- 
perty conveyed  by  him,  upon  his  master's  implied 
assent,  vests  in  the  contracting  party.1  An  execu- 
tory contract,  however,  such  as  a  promissory  note,  pay- 
able to  a  slave,  vests  no  right  of  action  in  the  master.2 

Hence,  also,  an  executory  contract  with  the  mas- 
ter to  emancipate  the  slave,  cannot  be  enforced  by 
the  slave,  not  even  though  made  with  a  third  person, 
the  slave  being  no  party  thereto.3  Though  it  may 
be  enforced  by  the  parties  themselves.4 

§  269.  In  some  of  the  States,  the  contract  by  the 
master  with  the  slave  for  his  emancipation,  has  been 
excepted  in  favorem  libertatis  from  the  general  rule 
as  to  the  contracts  of  slaves,  and  such  contracts 
have  been  enforced.5  Indeed,  it  may  be  worthy  of 
inquiry,  how  far  contracting  with  his  slave  by  im- 
plication emancipates  him  ?6  In  several  of  the 
States,  contracts  with  slaves  (mechanics,  &c.)  made 
by  third  persons,  with  the  implied  consent  of  the 
master,  are  expressly  prohibited. 

§  270.  The  inability  of  the  slave  to  contract  ex- 
Judge  and  jury  seemed  carried  away  with  enthusiasm,  at  the  "ex- 
traordinary benevolence  of  the  wench." 

1  Gist  v.  Toohey,  2  Rich.  425  j  Carmille  v.  Admr.  of  Carmille,  2 
McM.  470  j  Hobson  v.  Perry,  1  Hill,  277. 

2  Gregg  v.  Thompson,  2  Rep.  Con.  Ch.  331 ;  Fable  v.  Brown, 
2  Hill  Ch.  378 ;  2  Rich.  425 ;  Gist  v.  Toohey,  2  Rich.  425. 

8  Gatliff 's  Admr.  v.  Rose  et  al.  8  B.    Monr.  633 ;    Beall  v. 
Josephs,  Hardin's  Rep.  51. 

*  Thompson  v.  Wilmot,  1  Bibb,  422. 

5  Victoire  v.  Dusseau,  4  Martin  (La.),  212. 

6  Keane  v.  Boycott,  2  H.  Black.  573;  see  post,  §  369. 


CONTRACTS    BY   SLAVES,    AND    OF   MARRIAGE. 

tends  to  the  marriage  contract,  and  hence  there  is 
no  recognized  marriage  relation  in  law  between 
slaves.1  This  was  true  of  the  Roman  slaves.  There 
was  among  them  a  recognized  relation,  termed 
"  contubernium,"  from  which  certain  consequences 
flowed,  especially  after  manumission.  For  instance, 
it  was  incest  for  a  manumitted  slave  to  contract 
marriage  with  his  manumitted  sister.3  The  same 
effects  have  been  held  to  flow  from  a  marriage 
during  slavery,  after  manumission,  in  Louisiana.  In 
fact,  the  courts  there  seem  to  hold,  that  after  manu- 
mission, the  marriage  contract  becomes  valid  for  all 
purposes.3 

§  271.  The  marriage  relation  existed  among  the 
villains  of  England.  If  the  villain  neife  married  a 
freeman,  she  became  thereby  enfranchised,  and  her 
husband  compensated  her  lord  for  her  loss.4  And, 
e  converso,  it  would  seem,  that  if  a  villain  married  a 
free  woman,  the  woman  became  a  neife.5  If  the  father 

1  Jackson  v.  Lervey,  5  Cowen,  397 ;  The  State  v.  Samuel,  2 
Dev.  &  Bat.  177 ;  see  Opinion  of  Mr.  Dulaney,  in  App.  to  1  Har. 
&  McH.  R.  560,  561. 

2  Dig.  Lib.   XXIII,  tit.  ii,  §  14 ;  Cooper's  Notes  to  Institutes, 
420 ;  Taylor's  Elements,  Civil  Law,  429 ;  Smith's  Diet.  Gr.  and 
Rom.  Antiq.  "Servus." 

8  Girod  v.  Lewis,  6  Martin  R.  559. 

4  Bro.  Abr.    Villenage,  pi.  10 ;    Lit.  Lib.  II,  cap.  xi,  §  187. 
Upon  the  death  of  her  husband,  however,  she  returned  to  her 
former  state  of  slavery.     Mirror,  ch.  ii,  §  18.     This  seems  ap- 
proved by  Lord  Coke.    Co.  Litt.  123. 

5  Co.  Litt.  123,  says,  "And  when  a  bondman  marrieth  a  free- 
woman,  they  are  all  one  person  in  law ;  and  duoe  animce  in  came  una; 
and  uxor  subjecta  est  viro  et  sub  potestate  viri."    See  also  Bro.  Abr. 
tit.  Villenage,  PL  23,  39.     Such,  certainly,  was  the  law  of  France. 
Marculfi  Formulae,  L.  II,  29.     And  of  Burgundy  and  Lombardy. 


244 


LAW   OF   NEGRO   SLAVERY. 


and  mother  were  both  villains,  and  belonged  to  dif- 
ferent lords,  the  issue  were  equally  divided  between 
the  respective  masters.1 

§  272.  The  marriage  relation  existed  at  a  later 
day  among  the  homines  proprii  of  the  German  na- 
tions.2 But  until  the  ninth  century,  the  contuber- 
nial  relation  alone  was  recognized.3  Potgiesser 
boasts  that  the  Germans  were  the  first  who  united 
their  servants  together  in  the  name  of  Christ.4 
Without  the  consent  of  the  master,  however,  the 
marriage  was  void,  and  the  parties  punished  se- 
verely.5 

§  273.  It  seems  that  the  Hebrew  law  did  not  re- 
cognize marriage  among  slaves  of  other  than  Hebrew 
origin,  but  a  relation  existed  similar  to  the  contu- 
bernium  of  Rome.  Certain  it  is,  that  the  separation  of 
the  man  from  his  wife  and  children,  was  in  certain 
cases  expressly  commanded. « 

§  274.  The  marriage  of  free  men  and  women  with 
slaves  was  very  much  discouraged  by  the  laws,  civil 
and  ecclesiastical,  of  the  middle  ages.  Heavy  penal- 
ties were  annexed,  and  the  right  was  even  conceded 
to  parents  to  kill  a  daughter  who  persisted  in  such 

Potgies.  Lib.  II,  cap.  ii,  §  30.  In  Flanders,  a  man  that  married  a 
villain  became  one  himself,  after  living  with  her  for  a  twelvemonth. 
Recueil  des  Historiens,  torn,  xiii,  p.  350.  So,  also,  among  the 
Franks.  Potgies.  Lib.  II,  cap.  ii,  §  31. 

1  Qui  vero  procreantur  ex  nativa  unius  et  native  alterius  propor- 
tionabiliter  inter  dominos  sunt  dividendi.  Coke  Litt.  123. 

3  Heinec.  Elem.  Jur.  Lib.  I,  §  85. 

3  Potgies.  Lib.  I,  cap.  iii ;  Lib.  II,  cap.  ii. 

4  Lib.  II,  cap.  ii,  §  10.  5  Ibid.  §§  12,  13,  et  seq. 

6  See  Potgies.  Lib.  II,  cap.  ii,  §  2,  and  authorities  cited  by  him, 
from  the  opinions  of  Jewish  Rabbins. 


CONTRACTS   BY   SLAVES,    AND    OF   MARRIAGE.          245 

an  alliance.  The  question  was  submitted  to  the 
See  of  Rome,  whether  a  freeman  might  put  away  a 
wife,  taken  from  the  servile  class,  and  take  a  free- 
woman  to  his  bed.  Leo  responded  in  the  affirma- 
tive.1 Among  the  Germans  three  years  were  given 
to  a  free  woman  to  repent  of  her  course  and  dissolve 
the  relation.  In  such  case,  however,  the  issue  pend- 
ing the  coverture  were  slaves.2 

§  275.  The  contract  of  marriage  not  being  recog- 
nized among  slaves,  of  course  none  of  its  conse- 
quences follow  from  the  contubernial  state  existing 
between  them.  Their  issue,  though  emancipated, 
have  no  inheritable  blood.3  In  trials  of  slaves,  they 
may  be  witnesses  for  and  against  each  other.4  Yel 
as  the  fact  of  cohabiting,  and  living  together  as  man 
and  wife,  is  universal  among  slaves,  and  the  privi- 
leges of  parents  over  children,  in  correcting  and  con-( 
trolling  them,  are  universally  acceded  to  them,  in  all 
trials  of  slaves  for  offences  committed  by  them,  these 
relations  are  recognized  by  the  Courts,  and  the 
merciful  extenuations  of  the  law,  to  the  conduct  of 
the  husband  and  father,  are  extended  to  the  slave 
standing  in  the  same  situation. 

§  276.  How  far  this  contubernial  relation  between 
slaves  may  be  recognized  and  protected  by  law,  is  a 
question  of  exceeding  nicety  and  difficulty.  The 
unnecessary  and  wanton  separation  of  persons  stand- 

1  Potgies.  Lib.  II,  cap.  ii,  §  37 ;  see  note  to  §  271. 

2  Ibid.  Lib.  II,  cap.  ii,  §  34. 

8  Jackson  v.  Lervey,  5  Cow.  397. 

4  Tbe  State  v.  Samuel,  2  Dev.  &  Bat.  177.  In  this  case  it  is 
held,  that  the  recognition  of  this  state  of  concubinage,  in  many  of 
the  statutes  of  North  Carolina,  does  not  legalize  the  marriage,  so 
as  to  give  any  of  the  effects  of  the  marriage  relation  thereto. 


246  LAW  OF   NEGRO    SLAVERY. 

ing  in  the  relation  of  husband  and  wife,  though  it 
may  rarely,  if  ever,  occur  in  actual  practice,  is  an 
event  which,  if  possible,  should  be  guarded  against 
by  the  law.  And  yet,  on  the  other  hand,  to  fasten 
upon  a  master  of  a  female  slave,  a  vicious,  corrupt- 
ing negro,  sowing  discord,  and  dissatisfaction  among 
all  his  slaves ;  or  else  a  thief,  or  a  cut-throat,  and  to 
provide  no  relief  against  such  a  nuisance,  would  be 
to  make  the  holding  of  slaves  a  curse  to  the  master. 
It  would  be  well  for  the  law,  at  least,  to  provide 
against  such  separations  of  families  by  the  officers 
of  the  law,  in  cases  of  sales  made  by  authority  of 
the  Courts,  such  as  sheriffs'  and  administrators'  sales. 
How  much  farther  the  lawgiver  may  go,  requires 
for  its  solution  all  the  deliberation  and  wisdom  of 
the  Senator,  guided  and  enlightened  by  Christian 
philanthropy.1 

§  277.  The  incapacity  of  a  slave  to  contract, 
being  a  part  and  consequence  of  his  personal  status, 
extends  to  every  place  he  may  go,  so  long  as  he  re- 
mains a  slave.  D'Aguesseau  gives  the  incapacity 
to  contract  as  an  illustration  of  the  meaning  and 
effect  of  a  personal  statute.2  Hence,  a  fugitive  slave, 
though  he  may  be  in  a  State  where  slavery  does  not 
exist,  is  still  incapable  of  contracting,  his  status  re- 
maining unchanged.3  And,  even  though  the  slave 
be  afterwards  manumitted,  he  cannot  be  made  re- 
sponsible upon  a  contract  entered  into  while  in  a 
state  of  slavery.4 

1  See  the  Act  in  Georgia,  on  this  subject. 

2  (Euvres,  torn,  v,  256,  8vo.  ed. 

3  Giles  v.  Hodges,  9  Johns.  R.  67 ;  Trongott  v.  Byers,  5  Cow. 
480 ;  Per  Lord  Alvanley,  Williams  v.  Brown,  3  Bos.  &  Pul.  71. . 

4  Free  Lucy  and  Frank  v.  Denham's  Admr.  4  Monr.  169. 


CHAPTER  XVI. 

OF    SUITS    FOR   FREEDOM. 

§  278.  ANOTHER  disability  of  the  slave,  which  may 
be  properly  considered  in  this  connection,  is  his  inabi- 
lity to  be  a  suitor  in  any  of  the  Courts  of  justice,  either 
as  plaintiff  or  defendant,  except  in  suits  for  freedom, 
which,  in  most  of  the  States,  is  provided  for  and  re- 
gulated by  statute.1  This  was  the  rule  of  the  civil 
law,2  of  the  ancient  Britons,3  Germans,  and  Franks, 
and  other  European  nations.*  This  disability  extends 
to  statuliberi,  or  those  whose  manumission  takes 
effect  infuturo.5  It  accompanies  the  slave  to  every 
jurisdiction,  so  long  as  his  status  is  unchanged.  It 
has  been  held,  however,  that  for  a  trespass  upon  his 

1  Bland  &  Woolfolk  v.  Negro  Beverly  Bowling,  9  Gill  &  J.  19 ; 
Amy  v.  Smith,  1  Litt.  326 ;  Cateche  et  al.  v.  The  Circuit  Court, 
&c.  1  Miss.  608;  Matilda  v.  Crenshaw,  4  Yerg.  303;  Susan  v. 
Wells,  3  Brev.  11;  4  Gill,  249;  Berard  v.  Berard,  9  Louis.  156; 
Free  Lucy,  &c.  v.  Denham's  Admr.  4  Monr.  169. 

2  Taylor's  Elem.  of  Civil  Law,  429;  Heineccius  gives  the  reason, 
"ut  nee  servus,  qui  persona  plane  non  est,  agere  possit."     Elem. 
Jur.  de  Pand.  Pars  II,  Lib.  V,  §  14.      The  suit  for  freedom  was 
termed  "  Actio  de  liberali  causa."    Dig.  Lib.  IV,  8,  32. 

8  Fleta,  Lib.  IV,  cap.  xi,  §§  1,  4. 

4  Potgiesser,  Lib.  II,  cap.  i,  §§  17,  37. 

5  Dorothee  v.  Coquillon,  19  Mart.  L.  R.  350. 


248  LAW  OF   NEGRO    SLAVERY. 

person,  while  within  the  jurisdiction  of  a  non-slave- 
holding  State,  he  might  maintain  an  action.1 

§  279.  As  before  remarked,  in  all  the  States  the 
negro  may  institute  proceedings  to  recover  his  free- 
dom, when  unlawfully  detained  in  bondage.  Many 
of  the  States  prescribe  by  statute  the  nature  and 
form  of  the  proceedings,2  and  in  such  case  it  must 
be  strictly  pursued.3  In  others,  these  are  mere 
creatures  of  the  Court.  Trespass  for  an  assault  and 
false  imprisonment  is  frequently  adopted  as  the  form 
of  action.4  In  many  of  the  States,  a  guardian  or 
prochein  ami  appears  in  behalf  of  the  slave,  and  is 
responsible  for  the  costs.5  To  avoid  vexatious  and 
unfounded  suits,  the  slave  not  being  liable  to  be 
mulcted  in  costs,  other  States  require  a  previous 
application  to  the  presiding  Judge,  and,  on  a  primd 
facie  case  being  made,  liberty  is  granted  to  the  slave 
to  appear  in  forma pauperis,  and  counsel  are  assigned 
for  him. 

1  Polydore  v.  Prince,  1  Ware,  Dist.  Ct.  Rep.  410. 

3  Georgia,  New  Dig.  999,  1011;  Mississippi,  Hutchinson's  Code, 
523;  Maryland,  Dorsey's  Laws,  &c.  341;  Virginia,  Rev.  Code 
(1849),  464;  Alabama,  Code  of  1852,  §§  2049-2055;  Arkansas, 
Dig.  of  1848,  ch.  74,  p.  543 ;  Missouri,  Rev.  Stat.  (1845),  ch. 
69,  p.  531;  Delaware,  Rev.  Code  (1852),  ch.  80,  Sect.  20. 

3  Richard  v.  Demors,  5  S.  &  M.  609 ;  Peters  v.  Van  Lear,  4 
Gill,  249.     But  see  Union  Bank  of  Tenn.  v.  Benham,  23  Ala. 
143.     Whereas,  against  creditors  of  the  nominal  master,  another 
proceeding  was  allowed. 

4  Matilda  v.  Crenshaw,  4  Yerg.  303 ;  Pleasants  v.  Pleasants,  2 
Call.  293 ;  Evans  v.  Kennedy,  1  Haywood,  N.  C.  422. 

5  The  civil  law,  to  the  time  of  Justinian,  required  the  slave  to 
appear  by  next  friend,  called  adsertor.     The  difficulty  of  finding 
persons  to  occupy  this  position,  induced  him  to  allow  them  to  appear 
directly.     Cod.  Lib.  VII,  17,  1. 

8  Missouri,  Rev.  Stat.  1845,  ch.  69 ;  Arkansas,  Dig.  of  1848, 


SUITS    FOR   FREEDOM.  249 

§  280.  In  other  States,  to  prevent  slaves  from 
harassing  their  masters  with  unfounded  suits,  the 
Courts  were  allowed,  in  their  discretion,  to  cause 
corporal  punishment  to  be  inflicted  upon  the  claim- 
ant, if  the  jury  should  return  a  verdict  adverse  to 
his  claim  of  freedom.1  Mr.  Stroud  has  compared 
this  legislation  to  the  "  feast  of  Damocles,"  consider- 
ing the  "  conduct  of  Dionysius  supreme  beneficence 
compared  with  the  terms  of  mercy  contained  in  this 
act."2  It  is  the  only  judgment  that  can  be  entered 
against  a  slave,  and  when  we  remember  that  it  is 
entered  at  the  suit  of  the  master,  who  can  by  law, 
at  his  own  pleasure,  inflict  the  same  punishment, 
and  that  it  is  regulated  by  the  discretion  of  a  disin- 
terested and  impartial  and  humane  Judge,  sworn  to 
administer  the  law  in  mercy,  the  provision  seems 
indeed  to  be  very  unnecessary  and  ineffectual  (hav- 
ing for  its  object  more  the  deterring  of  the  slave 
from  an  unfounded  suit,  than  his  actual  punish- 
ment), yet  it  certainly  does  not  deserve  the  denun- 
ciation with  which  Mr.  Stroud  has  treated  it.  In 
other  States,  penalties  have  been  affixed  upon  the 
attorney  prosecuting  the  case,  or  others  aiding  and 
abetting  in  the  cause,  where  the  claim  of  freedom 
proves  to  be  unfounded.3 

ch.  74 ;  Bodine's  Will,  4  Dana,  476 ;  Dempsey  v.  Lawrence,  Gil. 
333. 

1  In  South  Carolina.  Georgia,  New  Digest,  971.  Query,  Does 
not  the  Act  of  1837  repeal  this  provision  ?  Ibid.  101 1. 

fl  Sketch,  &c.  79. 

8  Maryland,  Dorsey's  Laws,  341  j  Virginia,  Kev.  Code  (1849), 
465.  By  the  civil  law,  the  slave  could  appear  only  by  his  next 
friend  (adsertor),  of  whom  security  was  required  for  the  person  of 
the  slave,  and  also  for  costs.  Justinian  abolished  this  law,  and 


250  LAW  OP  NEGRO   SLAVERY. 

§  281.  These  various  restrictions,  while  founded 
upon  a  regard  for  the  peace  and  protection  of  the 
master,  are  unnecessary,  public  opinion  being  a  suffi- 
cient guarantee  against  such  an  evil.  They  are  in 
fact  dead  letters  on  the  statute-book,  as  the  reports 
of  the  several  States  will  make  manifest.  They 
serve  only  as  food  for  the  appetite  and  texts  for  the 
pens  of  Abolition  fanatics,  and  had  better  be  ex- 
punged. 

§  282.  The  freedom  of  the  claimant  frequently 
depends  upon  the  will  of  his  previous  master.  Until 
admitted  to  probate,  it  is  inchoate,  and  the  question 
has  arisen,  whether  the  slave  thus  emancipated  may 
propound  the  will  for  probate  ?  It  is  not  strictly  a 
suit  for  freedom.  It  is  merely  to  establish  a  part  of 
the  title,  and  being  slaves  until  their  title  to  free- 
dom is  established,  the  disability  as  slaves  to  sue 
attaches  to  them.  In  some  of  the  States  it  has  been 
held,  that  they  might  propound,1  even  where  the 
will  emancipates  upon  a  future  or  uncertain  contin- 
gency.2 

§  283.  The  course  most  consonant  with  principle, 
would  seem  to  be  for  the  slave  to  institute  his  suit 
for  freedom,,  and  upon  the  trial  to  prove  the  execu- 

allowed  the  slave  to  appear  by  attorney.  Cod.  VII,  17,  1.  See 
Livy,  Bk.  Ill,  ch.  xlvi;  Henry's  Points  in  Manumission,  43,  et 
seq. 

1  Ben  Mercer  et  als.  v.  Kelso's  Admr.  (so  says  the  Keporter),  4 
Grattan,  106  j  Bodine's  Will,  4  Dana,  476. 

a  Bodine's  Will,  4  Dana,  476.  The  civil  law  gave  an  equitable 
action  to  compel  the  performance  of  a  trust  under  a  will,  in  favor 
of  freedom.  Dig.  40,  5, 17.  In  Tennessee,  by  special  Act  (1829), 
if  the  executor  refused  to  apply  to  the  County  Court  for  its  assent, 
the  slaves  might  file  a  bill  by  their  next  friend.  Fisher's  Negroes 
v.  Dabbs,  6  Yerger,  119. 


SUITS   FOR   FREEDOM.  251 

tion  of  the  will,  his  inability  to  propound  being  a 
sufficient  reason  why  the  will  has  not  been  passed 
upon  by  the  Probate  Court ;  or  else,  pending  the 
suit  for  freedom,  to  allow  the  slave  to  file  a  bill  in 
equity,  compelling  the  executor  to  propound,  or  at 
least  to  produce  the  will  for  probate.1  Such  a  bill 
has  been  allowed  at  the  instance  of  slaves  manu- 
mitted by  will,  to  compel  the  executor  to  make  ap- 
plication to  the  County  Court  for  the  assent  neces- 
sary to  make  valid  the  manumission.2  And  a  similar 
proceeding  has  been  allowed  against  the  executor  of 
a  will  of  another  than  the  master,  by  which  will  the 
slaves  were  required  to  be  purchased  and  manu- 
mitted.3 

§  284.  To  prevent  the  removal  of  the  applicants 
for  freedom,  pending  the  suit,  many  of  the  States 
require  the  person  having  them  in  possession  to  give 
bond  and  security  for  their  forthcoming.4  In  others, 
where  no  such  provision  is  made,  a  bill  in  the  nature 
of  a  quia  timet,  lies  at  the  instance  of  the  slave.5 
And  even  the  statutory  provision  has  been  held  no 
bar  to  a  bill  for  the  purpose.6 

1  Isaac  et  al.  v.  McGill,  9  Humph.  616 ;  Wade  et  al.  v.  Amer. 
Col.  Soc.  7  S.  &  M.  663 ;  Peters  et  al.  v.  Van  Lear,  4  Gill.  249. 

a  Isaac  et  al.  v.  McGill,  9  Humph.  616  ;  see  also  Peters  et  al. 
v.  Van  Lear,  4  Gill.  249. 

8  Marie  v.  Avart,  6  Mart.  Louis.  K.  731. 

4  Georgia,  New  Digest,  1011;  South  Carolina,  Carpenter  v.  Cole- 
man,  2  Bay.  436;    Tennessee,  Act  of  1817,  c.  103;   Alabama, 
Code  of  1852,  §  2052.     A  similar  provision  in  civil  law.     See 
Henry's  Points,  &c.  47,  n. 

5  Sylvia  &  Phillis  v.  Covey,  4  Yerg.  297;  Fenwick  v.  Chapman, 
9  Pet.  475. 

6  Sylvia  &  Phillis  v.  Covey,  4  Yerger,  297 ;  see  Harriet  v.  Ridgely, 
9  Gill.  &  J.  174. 


252  LAW   OF   NEGRO    SLAVERY. 

§  285.  The  suit  for  freedom  is  allowed  only  to 
those  who  are  actually  free,  and  are  wrongfully  de- 
tained in  bondage.  Hence,  it  does  not  lie  to- enforce 
an  executory  contract,  by  which  freedom  is  promised 
to  the  slave.  Here  the  plaintiff  is  still  a  slave,  and 
the  disability  of  the  slave  to  sue  attaches  to  him.1 
We  shall  see  hereafter  how  far  such  contracts  are 
binding  on  the  master.  We  may  remark  here,  that 
if  a  slave  is  bequeathed  to  a  legatee  for  the  purpose 
of  manumission,  this  is  good  reason  for  a  specific 
performance,  if  the  executor,  or  other  person  having 
him  in  possession,  refuses  to  deliver  him  up.2 

§  286.  The  suit  for  freedom  is  viewed  favorably 
by  the  courts,  on  account  of  the  imbecile  condition 
of  the  claimants,3  and  may  be  instituted  wherever 
the  slaves  may  be  held  in  custody,  although  the 
right  to  freedom  accrued  under  the  laws  of  another 
jurisdiction.4  Nor  will  the  courts  require  any  nicety 
or  technicality  in  pleading.5  It  must  be  commenced, 
however,  against  the  person  actually  claiming  and 
holding  them,  and  not  against  a  previous  owner  who 
has  parted  with  the  possession.6  It  may  be  brought 
against  the  executor  of  a  deceased  owner,  although 
creditors  may  be  interested  in  the  issue.7  Where 

1  Henry  v.  Nunn,  11  B.  Monr.  239.  3  Code,  7,  5,  17. 

3  Hudgins  v.  Wright,  1  Hen.  &  M.  143 ;  Lee  v.  Lee,  8  Pet.  44. 
Such  was  the  civil  law.     See  Henry's  Points  in  Manumission. 

4  Rankin  v.  Lydia,  2  A.  K.  Mar.  467. 

5  Pleasants  v.  Pleasants,  2  Call.  350;  Hudgins  v.  Wright,  1  Hen. 
&  Munf.  134  j  McMichen  v.  Anios  et  al.  4  Rand.  134. 

8  John  et  al.  v.  Walker,  8  B.  Monr.  605. 

7  Fenwick  v.  Chapman,  9  Pet.  461.  The  judgment  is  not  con- 
clusive against  the  creditors.  Allen  v.  Negro  Jim  Sharp,  7  Gill. 
&  J.  96. 


SUITS   FOR    FREEDOM.  253 

the  claim  to  freedom  of  several  slaves  depends  upon 
the  same  title  and  proof,  a  joint  action,  by  them,  has 
been  allowed.1  The  propriety  of  this,  however, 
where  the  action  sounded  in  tort,  has  been  questioned 
and  denied.2  The  common  law  allowed  two  or  more 
to  join  in  the  writ  de  homine  replegiando.3  The 
right  to  bring  the  suit  for  freedom  is  personal ;  and 
hence,  so  long  as  the  negro  is  content,  no  one  else 
can  sue  for  him.  Nor  can  his  freedom  be  set  up  as  a 
defence  against  a  suit  by  his  nominal  master,  for 
trespass  to  him,  or  other  action  founded  on  his  pos- 
sessions 

§  287.  The  issue  made  in  all  suits  for  freedom,  is 
the  right  of  the  claimant  to  liberty.  It  is  not  com- 
petent, therefore,  to  seek  a  recovery  by  showing  a 
want  of  title  in  the  defendant.5  Like  all  other 
plaintiffs,  the  claimant  must  remove  the  onus  pro- 
bandi  which  is  upon  him.6  If  the  alleged  freeman 
had  been  in  the  enjoyment  of  freedom,  the  civil  law 
cast  the  onus  upon  the  master,  he  being  defendant.7 
A  personal  inspection  is  not  only  allowable  but 

1  Harris  v.  Clarissa  et  al.  6  Yerg.  227 ;  Coleman  v.  Dick  &  Pat, 
1  Wash.  233 ;  Peters  v.  Van  Lear,  4  Gill,  249. 

2  Violet  and  another  v.  Stephens,  Lit.  Sel.  Cas.  147 ;  Beaty  v. 
Judy,  1  Dana,  103. 

8  Thomas's  Coke,  vol.  iii,  p.  340,  n.  2. 

4  Calvert  v.  Steamboat  Trinoleon,  15  Miss.  595. 

5  Harriet  v.  Ridgely,  9  Gill.  &  J.  174  j  Berard  v.  Berard,  9 
Louis.  R.  157 ;  Johnson  v.  Tompkins  et  al.  Bald.  C.  C.  R.  577. 

6  Vaughn  v.  Phebe,  Mart.  &  Yerg.  20 ;  Berard  v.  Berard,  9 
Louisiana  R.  157;  Mary  v.  Morris  etal.  7  Louis.  R.  135;  Hudgins 
v.  Wright,  1  Munf.  134, 138.     Such  was  the  civil  law  also.     Dig. 
40, 12,  7,  41. 

?  De  Except.  Dig.  44,  1,  12. 


254  LAW  OF   NEGRO    SLAVERY. 

proper  for  the  jury;  and  the  color  of  the  applicant, 
whether  white  or  black,  affords  a  corresponding  pre- 
sumption for  or  against  his  freedom.1  The  rules  of 
evidence,  in  such  cases,  are  the  same  as  in  ordi- 
nary cases.3  Hearsay  or  reputation  is  admissible  to 
prove  pedigree,3  but  is  inadmissible  to  prove  any 
specific  fact  which  is  in  its  nature  susceptible  of 
being  proved  by  witnesses  who  speak  from  their  own 
knowledge.4  Hence,  it  is  not  allowable,  to  prove  by 
hearsay  or  general  reputation,  that  the  ancestor  of 
the  applicant  was  free.5  So  the  declarations  of  a 
previous  owner  are  admissible  or  not,  according  as 
they  were  made  before  or  after  parting  with  posses- 
sion.6 So,  also,  the  manner  of  attacking  the  credi- 
bility of  witnesses,  is  the  same ;  and  evidence  that 
the  applicant's  witness  associated  with  negroes,  is 
inadmissible.7  On  account  of  the  condition  of  sub- 
jection of  the  slave,  and  the  control  of  the  master, 
admissions  made  by  him  against  his  right  to  freedom, 

i  Hook  v.  Nancy  Pagee  and  her  children,  2  Munf.  379 ;  Hudgins 
v.  Wright,  1  Hen.  &  M.  133 ;  Gentry  v.  Polly  McMinnis,  3  Dana, 
385.  See  ante. 

3  Mima  Queen  and  child  v.  Hepburn,  7  Cranch,  295;  Field  v. 
Walker,  23  Ala.  155. 

3  John  Davis  et  al.  v.  Wood,  1  Wheat.  6 ;  Vaughn  v.  Phebe, 
Mart.  &  Yerg.  5 ;  Pegram  v.  Isabel,  2  Hen.  &  M.  193. 

4  Mima  Queen  and  child  v.  Hepburn,  7  Cranch,  290. 

5  Davis  et  al.  v.  Wood,  1  Wheat.  6 ;  Walls  v.  Hemsley  et  al.  4 
Har.  &  J.  243 ;  Gregory  v.  Baugh,  4  Rand.  611 ;  aliter,  4  Harr. 
&  McH.  63 ;  see  also  2  Leigh,  665  ;  1  Hen.  &  M.  142. 

6  Gentry  v.  Polly  McMinnis,  3  Dana,  382 ;  Garnett  v.  Sam  & 
Phillis,  5  Munf.  542;  Free  Jack  v.  Woodruff,  3  Hawks,  106; 
Caroline  v.  Burgwin,  3  Dev.  &  Bat.  28. 

?  Thomas  v.  Pile,  3  Har.  &  Me.  H.  241. 


SUITS    FOR   FREEDOM.  255 

should  be  received  with  great  caution,  and  allowed 
but  little  weight.1 

§  288.  Though  the  slave  is  allowed  thus  to  sue 
and  become  a  party  in  court,  yet  until  judgment 
affirms  his  right  to  freedom,  he  is  a  slave.2  Hence, 
he  is  not  entitled  in  the  progress  of  the  cause  to 
make  affidavit  for  the  purpose  of  changing  venue, 
or  otherwise  to  be  heard  as  a  freeman.3  His  guar- 
dian, or  prochein  ami,  may  be  heard  in  his  behalf, 
or,  where  he  sues  directly  in  his  own  name,  his  at- 
torney. 

§  289.  The  question  has  been  much  discussed, 
whether,  upon  a  verdict  establishing  the  freedom  of 
the  applicant,  damages,  or  hire,  should  be  given  to 
the  plaintiffs.  In  some  of  the  States,  such  damages 
are  given  by  special  statute.4  In  the  absence  of 
statutory  enactment,  in  analogy  to  other  actions, 
many  of  the  courts  have  allowed  damages  by  way  of 
mesne  profits,  some  from  the  time  of  the  commence- 
ment of  the  suit,5  and  others  for  the  whole  period 
of  their  illegal  detention,  together  with  the  expenses 
of  litigation.6  In  others  still,  the  question  of  da- 

1  Vincent  v.  Duncan,  1  Missouri  R.  214.  The  civil  law  ex- 
cluded it  altogether.  Cod.  7,  16,  6. 

a  The  civil  law  was  otherwise.  He  was  entitled  to  his  liberty, 
pendente  lite,  by  giving  security  for  his  appearance.  Henry's 
Points  in  Man.  51. 

8  Queen  v.  Neale,  3  Har.  &  J.  158  j  Peter  et  al.  v.  Hargrave  et 
al.  5  Grat.  14. 

4  In  Georgia,  New  Digest,  971 ;  Virginia,  Rev.  Code  (1849), 
465. 

5  Gordon  v.  Duncan,  3  Miss.  385;  Matilda  v.  Crenshaw,  4  Yerg. 
299. 

8  Pepoon  v.  Clarke,  1  Rep.  Const.  Ct.  S.  C.  157. 


256  LAW  OF  NEGRO   SLAVERY. 

mages  is  made  to  depend  upon  the  bona  fides  of  the 
defendant's  claim.1  Other  courts  insist,  and  with  great 
force,  that  the  peculiar  condition  of  the  slave,  and 
relation  that  he  bears  to  the  white  race,  the  difficul- 
ties surrounding  the  master,  and  the  interest  of  the 
freedman  himself,  render  it  inexpedient  to  make  his 
freedom  relate  back  farther  than  the  judgment  pro- 
nouncing him  free.  In  these  courts  all  damages  are 
refused.2  Unless  allowed  by  statute  it  is  usually  re- 
covered in  a  subsequent  suit.3 

§  290.  The  effect  of  the  judgment  in  favor  of  or 
against  the  freedom  of  the  applicant  is  governed 
generally  by  the  same  rules  with  other  judgments. 
Hence,  the  record  of  such  judgment  establishing  the 
freedom  of  the  ancestor  is  not  evidence,  unless  be- 
tween parties  or  privies.  Between  them  it  is  not 
admissible  to  sustain  the  application  of  a  descendant 
born  prior  to  the  judgment,4  but  is  admissible  and 
conclusive  evidence  in  favor  of  or  against  issue  born 
subsequent  to  the  judgment.5  A  judgment  against 

1  Scott  v.  Williams,  1  Dev.  Law,  376  j  Woolfolk  v.  Sweeper,  2 
Humph.  88,  96 ;  Phillis  v.  Gentin,  9  Louis.  208 ;  Thompson  v. 
Wilmot,  1  Bibb,  422. 

2  Peter  et  al.  v.  Hargrave  et  al.  5  Grat.  12;  Paul's  Adrnr.  v. 
Mingo  et  al.  4  Leigh,  163 ;  Henry  et  al.  v.  Bollar  et  al.  7  Leigh, 
19 ;  Pleasants  v.  Pleasants,  2  Call.  250. 

3  Woolfolk  v.  Sweeper,  2  Humph.  88.     Under  the  civil  law, 
a  freedman,  wrongfully  claimed  as  a  slave,  might   sue  for  the 
calumny.     Cod.  7,  16,  30. 

4  Davis  v.  Wood,  1  Wheat.  6 ;  Pegram  v.  Isabel,  1  Hen.  &  M. 
388;    aliter,  Vaughn  v.  Phebe,  Martin    &  Yerg.    5;    see  also 
Pegram  v.  Isabel,  2  Hen.  &  Munf.  199,  Judge  Tucker's  Opinion. 
See  James  v.  Jones,  10  Humph.  334. 

5  Chancellor  v.  Milton,  1  B.  Monr.  25 ;  Alexander  v.  Stokely,  7 
Sergt.  &  R.  299 ;  Shelton  v.   Barbour,  2  Wash.  64 ;  Pegram  v. 


SUITS    FOR   FREEDOM.  257 

the  claim  for  freedom  would  be  a  bar  to  another  suit 
in  the  name  of  a  different  next  friend.1  The  record 
of  the  judgment  in  favor  of  freedom  is  also  admis- 
sible as  primd  facie  evidence  of  an  eviction,  against 
the  warrantor  of  the  title  who  was  vouched  by  the 
party.2 

§  292.  The  same  rule  was  early  adopted  as  to  vil- 
lains in  England.  In  trespass,  for  taking  a  villain, 
it  appeared  that  the  ancestor  in  a  former  suit,  in 
which  it  was  alleged  that  he  was  a  villain  regardant, 
had  answered  that  he  was  free,  and  verdict  accord- 
ingly. The  son  relied  upon  this  finding  as  an  es- 
toppel, and  it  was  so  held.3 

§  293.  There  suit  for  freedom,  not  being  for  the 
recovery  of  property,  is  not  within  the  ordinary 
statutes  of  "  limitation  of  actions,"  and  on  account 
of  the  poverty,  general  ignorance,  and  enslaved  con- 
dition of  the  applicants,  no  length  of  time  will  be 
held  by  the  Courts  to  bar  the  right  to  sue.4  Nor 
will  the  applicant  be  estopped  by  the  fact  of  allow- 
ing himself  to  be  sold  as  a  slave  without  giving 
notice  of  his  claim  to  freedom.5  On  the  other  hand, 

Isabel,  2  Hen.  &  Munf.  193  j  Koberts  v.  Smiley,  5  Monr.  271.  But 
see  Wood  v.  Stephen,  1  S.  &  R.  175. 

1  The  rule  was  formerly  different  by  the  civil  law,  but  Justinian 
adopted  the  rule  laid  down  in  the  text.     Cod.  7,  17,  1. 

3  Roberts  &  Co.  v.  Smiley,  6  Monr.  270 ;  Brown  v.  Shields,  6 
Leigh.  440.  3  Year  Books,  13  Ed.  IV,  2,  3,  4. 

4  Gentry  v.  McMannis,  3  Dana,  382 ;  G-atliff 's  Admr.  v.  Rose, 
8  B.  Monr.  631.     Per  Roane,  J.,  in  Hudgins  v.  Wright,  1  Hen. 
&  Munf.  141.     Such  was  the  civil  law.     Cod.  7,  22,  2,  3. 

5  G-uillemette  v.  Harper,  4  Rich.  186.     Such  was  the  civil  law, 
but  an  action  lay  against  him  in  favor  of  the  deceived  purchaser. 
Dig.  Lib.  XL,  12,  14. 

17 


258  LAW  OF  NEGRO   SLAVERY. 

it  appears,  no  length  of  time  of  the  enjoyment  of 
freedom  will  bar  the  master's  rights.  Such  was  the 
Eoman  law,  and  the  same  principle  was  generally 
adopted  among  the  Franks  and  Germans.1  The 
lord  of  the  villain,  on  the  contrary,  it  seems,  had  to 
reclaim  him  within  a  year  and  a  day.2 

§  294.  Frequently  strong  prejudices  exist  in  the 
minds  of  jurors  either  in  favor  or  against  the  claim 
of  freedom.  Such  jurors  are  not  "indifferent  between 
the  parties,"  and  though  no  bias  may  exist  in  the 
particular  case,  yet  such  general  prejudice  should 
be  allowed  as  a  challenge  to  the  favor.3 

§  295.  In  trial  of  questions  of  freedom  among  the 
Franks  and  Germans,  where  the  right  was  doubtful, 
it  was  decided  by  "  wager  of  battle."  And  then  the 
alleged  slave  was  allowed  to  enter  the  lists  in  his 
own  behalf.  In  other  cases,  he  who  detained  him 
from  the  master  "waged  the  battle"  for  him.4  It  is 
probable,  that  in  this  species  of  causes  was  the 
"  wager  of  battle"  first  introduced  as  an  appeal  to 
Deity  to  favor  the  right.  It  seems  to  have  arisen 
as  a  sequence  to  the  "wager  of  law  :"  where  neither 
party  could  bring  the  requisite  compurgatores,  one  of 
them  would  propose  to  produce  his  own  unsupported 

1  Heinec.  De  Praescr.  &c.  Exr.  xxvi,  §§  10,  11 ;  Opera,  vol.  ii, 
894,  895 ;  Potgies.  De  Stat.  Serv.  Lib.  II,  cap.  ix,  §  16,  et  seq. 
The  civil  law  allowed  a  prescription  of  thirty  years  to  avail,  in 
some  cases.  Henry's  Points  in  Man.  71. 

3  Fleta,  Lib.  IV,  cap.  xi,  §  23. 

3  Mima  Queen  v.  Hepburn,  7  Cranch,  290 ;  Chouteau  v.  Pierre, 
9  Miss.  3. 

4  Potgies.  De  Stat.  Serv.  Lib.  II,  cap.  ix,  §§  14, 15. 


SUITS   FOR   FREEDOM.  259 

oath,  and  challenge  the  other  party  to  deny  by  his 
oath,  in  which  event  the  appeal  was  to  arms.1 

1  Thus  the  law  of  the  Frisians,  "  Si  aut  calumniator,  aut  ille  cui 
calumnia  irrogata  est,  se  solum  ad  sacramenti  mysterium  perficien- 
dum  obtulerit,  et  dixerit :  ego  solus  jurare  volo  si  tu  audes  negare 
sacramentum  meum,  et  annis  mecum  contende !  Faciant  etiam 
illud  si  hoc  eis  placuerit ;  juret  unus,  et  alius  neget,  et  in  campum 
exeant."  Potgies.  Lib.  II,  cap.  ix,  §  14. 


CHAPTER  XVII. 

OF   OTHER  DISABILITIES   OF   SLAVES. 

<""  §  296.  THE  marriage  relation  not  being  recog- 
nized among  slaves,  none  of  the  relative  rights  and 

/duties  arising  therefrom,  belong  strictly  to  the  slave. 
"We  have  before  noticed  the  fact  that,  in  the  Crimi- 
nal Courts,  the  contubernial  relation  is  so  far  recog- 
nized that  the  motives  and  acts  of  slaves,  charged 
with  crimes,  are  adjudged  accordingly.  We  may 
make  the  same  assertion  in  reference  to  the  relation 
of  parent  and  child.  In  some  of  the  States,  both  of 
these  relations  are  so  far  recognized  by  the  legisla- 
ture, as  to  provide  by  statute  against  their  disrup- 

__tion  in  public  sales. 

§  297.  From  the  very  nature  of  slavery,  it  is  im- 
possible for  the  slave  to  hold  any  office  of  public  or 
private  trust.  He  consequently  cannot  be  executor 
to  a  will,  nor  guardian  to  a  ward.1  In  this  respect 
villanage  in  later  days  differed  widely  from  African 

—slavery,  the  villain  being  capable  of  acting  as  exe- 
cutor, and  in  such  capacity  being  allowed  to  bring 
suit  even  against  his  lord.3 

§  298.  Possessing  none  of  the  privileges  of  citizen- 
ship, the  slave  is  not  bound  to  any  of  its  duties.  He 

1  Civil  Code  Louis.  Art.  177.  a  Lit.  Inst.  Lib.  II,  §  191. 


OTHER,    DISABILITIES   OF   SLAVES.  261 

may,  however,  rightfully  bear  arms  in  a  war  under 
the  orders  of  his  master. 

§  299.  A  slave  cannot  be  constituted  an  agent  for 
a  third  person  other  than  the  master.2  He  may, 
however,  act  as  agent  for  his  master  or  employer, 
and,  where  the  master's  or  employer's  affirmation  of 
the  agency  is  proved,  he  will  be  bound  by  the  acts 
of  his  agent.3  This  affirmation  may  arise  from  acts 
as  well  as  express  authority.  Thus,  where  a  slave 
has  been  in  the  habit  of  purchasing  goods  of  a  trades- 
man, upon  the  credit  of  the  master,  and  the  bills  are 
paid  without  complaint,  or  notice  not  to  continue 
the  credit,  the  master's  assent  to  the  agency  will  be 
presumed.  The  presumption^  however,  is  against 
the  agency,  and  the  onus  lies  upon  the  tradesman  to 
prove  its  existence. 

§  300.  The  Roman  master  employed  his  slave  as 
his  agent  in  a  great  many  capacities.  They  were 
their  factors  in  the  management  of  business,  me- 
chanics and  artisans,  and  some  were  employed  as 
readers,  amanuenses,  and  copyists.4  They  were  some- 
times employed  as  electioneerers  for  their  masters, 
and  were  then  called  monitors,  and  sometimes  far- 
tores  (stuffers),  "because  they  stuffed  their  master's 
name  in  the  ears  of  the  citizens."5 

1  Grrotius,  De  Bel.  et  Pace,  Lib.  V,  ch.  v,  §  3.  He  cites  Aris- 
totle, in  support  of  this  principle.  See  also  Puffendorf,  Lib.  VIII, 
ch.  ii,  note. 

a  The  State  v.  Hart,  4  Ired.  246. 

8  The  State  v.  Hart,  4  Ired.  250 ;  Chastain  v.  Bowman,  1  Hill 
S.  C.  270. 

*  Smith's  Diet,  of  Gr.  and  Rom.  Antiq.  verb.  "  Servus." 

5  Heinec.  Antiq.  Rom.  Lib.  IV,  tit.  xviii,  §  77  (Op.  vol.  iv,  631). 


262  LAW   OF   NEGRO   SLAVERY. 

§  301.  For  the  protection  of  the  community,  many 
of  the  States  have,  by  special  enactment,  prohibited 
masters  from  employing  slaves  in  certain  capacities, 
where  the  opportunity  and  temptation  to  injure 
others  were  placed  before  them,  such  as  employing 
them  in  drug  stores,  or  to  administer  medicine,  even 
to  other  slaves  not  belonging  to  the  master.1 

1  Macon  v.  The  State,  4  Humph.  421. 


CHAPTER  XVIII. 

OF   OFFENCES   COMMITTED  BY   SLAVES. 

302.    WE  have^alreadj^  seen    that  ^statutory 

cluded  by  necessary  im- 
The  result  is,  that  the  ordinary  penal 
code  of  a  slaveholding  State  does  not  cover  offences 
committed  by  slaves,  and  the  penalties  thereby  pre- 
scribed cannot  be  inflicted  upon  them.  A  moment's 
reflection  would  show  the  propriety  of  this  principle. 
To  deprive  a  freeman  of  his  liberty,  is  one  of  the 
severest  punishments  the  law  can  inflict ;  and  one  of 
the  most  ordinary,  especially  when  the  penitentiary 
system  is  adopted.  But  to  the  slave  this  is  nov 
punishment,  because  he  has  no  liberty  of  which  to 
be  deprived.  |Cyery  slaveholding  State  has,  hence, 
found  it  necessary  to  adopt  a  slave  code,  defining 
the  offences  of  which  a  slave  may  be  guilty,  and 
affixing  the  appropriate  penalties  therefor.2  We 

'  Ante,  §  94. 

2  In  South  Carolina,  it  has  been  held,  that  the  expression,  "  if 
the  crime  by  law  deserve  death,"  applied  by  implication  to  the 
slave  all  capital  crimes  defined  in  the  code.  The  State  v.  Posey, 
4  Strobh.  125.  The  Alabama  Code  specifies  how  far  slaves  and 
free  persons  of  color  are  within  its  provisions,  §  3305. 


264  LAW  OF    NEGRO    SLAVERY. 

shall,  hereafter,  consider  how  far  free  negroes  have 
been  included  therein,  and  the  reasons  for  this 
course. 

§  303.  If  the  general  penal  code  does  not  include 
slaves,  it  must  follow,  that  where  the  presence  of 
two  or  more  persons  is  necessary,  under  that  code, 
to  constitute  an  offence,  slaves  cannot  be  enumerated 
so  as  to  make  out  the  offence  against  the  white  per- 
sons present.  Thus,  if  by  statute  the  presence  of 
three  persons  is  necessary  to  the  commission  of  a  riot, 
two  white  persons  cannot  be  found  guilty  on  proof 
of  the  presence  of  a  slave  aiding  and  abetting.1 

So,  also,  a  person  gaming  with  a  slave  cannot  be 
convicted  under  the  general  provisions  against  gam- 
ing ;  and  if  there  be  no  statutory  penalty,  must  go 
unpunished.2 

§  304.  Another  and  interesting  question  arises,  as 
to  how  far  a  white  person  may  become  an  accessory 
before  the  fact,  to  a  slave.  There  seems  to  be  no 
difficulty  in  saying  that  a  white  person  and  a  slave 
may  jointly  commit  an  offence,  and  each  be  tried 
and  punished  under  their  respective  codes,  although 
the  punishments  may  vary.  A  difficulty,  however, 
arises  (in  the  absence  of  statutes)  with  reference  to 
accessories.  For  instance,  the  ordinary  penal  code 
prescribes  that  the  punishment  for  accessories  before 
the  fact  shall  be  the  same  with  that  of  the  principal. 
The  punishment,  by  the  slave  code,  prescribed  for  an 
assault  with  intent  to  murder  a  white  person,  is 

1 1  am  aware  that  it  was  decided  otherwise  in  The  State  v. 
Thackain  &  Magson,  1  Bay.  358,  but,  as  I  conceive,  against  prin- 
ciple. z  State  v.  Pemberton  &  Smith,  2  Dev.  281. 


OFFENCES   COMMITTED    BY   SLAVES.  265 

death ;  while  for  the  same  offence  by  a  white  man, 
it  is  merely  imprisonment.  If,  then,  a  white  man 
was  convicted  as  an  accessory  to  a  negro,  in  this 
offence,  what  punishment  would  be  inflicted  on  him? 
The  principal's  punishment  is  death.  Can  the  ac- 
cessory's be  the  same?  The  difficulty  is  easily 
relieved,  by  a  provision,  by  statute,  making  the  pun- 
ishment the  same  as  if  the  principal  had  been  a 
white  person.  There  being  no  legal  difficulty  in  the 
way  of  a  white  person  being  accessory  to  a  person 
capable  by  law  of  committing  a  crime,  even  if  that 
person  is  his  own  slave,  the  Courts,  without  legisla- 
tion, might  construe  the  punishment  to  be  as  indi- 
cated above.1 

§  305.  If  the  criminal  act  is  committed  by  a  slave 
under  the  compulsion  of  the  master,  who  has  the 
right  to  enforce  obedience,  the  law  considers  the 
slave  as  the  mere  passive  instrument  in  the  hands 
of  the  master,  and  inflicts  punishment  on  him.  And 
if  the  person,  commanding  the  slave  to  commit  the 
offence,  be  not  the  master,  still,  if  the  act  is  done 
under  such  influence,  the  person  commanding  is 
treated  as  a  principal  offender.  In  some  of  the 
States,  this  principle  has  been  extended  to  persons 
persuading  slaves  to  commit  offences.2 

§  306.  In  minor  offences,  the  command  of  the 
master  would  be  a  perfect  defence  to  the  slave,  obey- 
ing, in  good  faith,  such  command.3  In  graver  offences, 

1  The  State  v.  Posey,  4  Strobh.  103. 

3  See  Statutes  in  Georgia  on  this  subject,  New  Digest  (1851), 
780,  781. 

3  By  express  statute,  in  South  Carolina,  Statutes  at  Large,  vii, 
343 ;  see  also  New  Digest  of  Statutes  of  Georgia,  780,  781. 


LAW  OF   NEGRO    SLAVERY. 

and  especially  capital  crimes,  public  policy  would 
forbid  such  a  defence  as  a  justification,  while  it 
would  be  always  admitted  in  extenuation  or  as  ex- 
planatory of  the  motives  of  the  offender. 

§  307.)  The  condition  of  the  slave  renders  it  impos- 


sible  to  inflict  upon  him  the  ordinary  punishments,  by 
pecuniary  fine,  by  imprisonment,  or  by  banishment.1 
('He  can  be  reached  only  through  his  body,  and  hence, 
/in  cases  not  capital,  whipping  is  the  only  punish- 
/nient  which  can  be  inflicted.     In  the  case  of  man- 
slaughter, some  of  the  States  prescribe  branding  on 
the  cheek  as  an  additional  punishment,  more  parti- 
cularly with  a  view  to  protect  distant  and  innocent 
purchasers  from  negroes  who  have  been  guilty  of  a 
homicide.3  The  extremes,  death  and  whipping,  being 
the  only  available  punishments,  it  becomes  neces- 
sary, in  forming  a  slave  code,  to  throw  all  offences 
<  under  the  one  or  the  other.     Hence,  many  offences 
/are,  from   public   policy,  necessarily  made   capital, 
Vhich,  when  committed  by  a  white  person,  are  not. 
/Such  are,  rape  upon  a  white  female ;  arson  in  a  town 
/  or  city  ;  attempts  to  poison  ;  insurrection,  &c.     This 
necessity  has  been  felt  in  every  country  where  there 
has  been  slavery,  and  this  consequent  difference  in 

1  In  Maryland,  banishment  is  prescribed  in  some  cases.    Dorsey's 
Laws,  702 ;  also  in  Virginia,  Rev.  Code  (1849),  106,  753,  754. 

2  The  earlier  slave  codes  provided  other  punishments,  mutilating 
the  bodies  of  the  slaves,  such  as  slitting  the  nose,  cutting  off  the 
ears,  castrating,  &c.     These  have  been  gradually  abolished  and 
superseded.     See  Dorsey's  Laws  of  Maryland,  777.     Mr.  Stroud 
comments  at  length  on  the  former  law ;  but  does  not  allude  to  the 
repealing  act,  which  had  been  in  existence  six  years  before  his 
sketch  was  published. 


OFFENCES   COMMITTED   BY   SLAVES.  267 

punishments  for  the  same  offence,  when  committed 
by  a  freeman  or  a  slave,  has  always  existed. 

§  308.  Another  consequence  of  being  restricted 
to  these  two  modes  of  punishment  is,  that  in  all 
offences  not  capital,  very  great  discretion  neces- 
sarily must  be  given  to  the  tribunal  trying  the 
offence,  in  regulating  the  amount  of  punishment  for 
each  individual  case.  The  varying  circumstances  of 
the  case,  the  previous  character  of  the  offender,  the 
condition  of  his  health,  &c.,  render  it  impossible  for 
a  scale  of  punishments  to  be  adopted,  leaving  nothing 
to  judicial  discretion.  Protected  as  the  slave  always 
is  by  the  presence  and  interest  of  his  master,  no  ill 
consequence  to  him  ever  follows  this  discretion. 

§  309.  These  peculiarities  as  to  the  punishment 
inflicted  for  the  offences,  thus  shown  to  be  necessary, 
are  the  fruitful  theme  for  vituperation  and  abuse 
against  the  slaveholding  States,  by  Mr.  Stroud,  in 
his  "Sketch  of  the  Laws  of  Slavery,"  in  which  he 
has  only  copied  from  Mr.  Stephen  similar  strictures 
on  the  Penal  Laws  of  the  British  West  Indies. 
Theoretically  it  may  be  considered  an  evil,  that  the 
list  of  capital  offences  should  be  enlarged.  Practi- 
cally the  punishment  is  never  inflicted  undeservedly. 
The  slave's  situation  is  such  that  the  temptation  to 
commit  the  higher  offences  is  very  slight,  and  only 
the  most  vicious  are  ever  guilty  of  them.  Execu- 
tions of  slaves  for  any  of  these  offences  are  very 
rare. 

§  310.  Every  State,  by  its  code,  has  constituted 
the  tribunals  before  whom  slaves  charged  with 
offences  shall  be  tried.  The  minor  offences  are 
usually  disposed  of  by  courts  called  together  for  the 


268  LAW  OF  NEGRO   SLAVERY. 

purpose,  so  as  to  avoid  delay  and  costs.  Capital 
offences  are,  in  most  of  the  States,  tried  before  the 
highest  County  Courts ;  and  every  guard,  thrown 
around  the  citizen  to  protect  his  innocence,  is  allowed 
to  the  slave.1  Counsel  is  not  only  allowed,  but  if 
the  master  fails  to  afford  it,  by  the  laws  of  all  and 
the  Constitutions  of  some,  the  Courts  are  bound  to 
appoint  counsel.2  It  being  the  duty  of  the  master 
to  protect  the  slave,  and  furnish  him  everything 
necessary  to  that  protection,  he  cannot  abandon  him 
when  charged  with  an  offence.  It  is  his  duty  to 
furnish  him  with  counsel ;  if  he  fails  to  do  so,  he 
will  be  liable  for  reasonable  fees  to  such  counsel  as 
afford  that  protection  which  he  was  bound  to  give.3 
It  would  seem,  however,  that  when  counsel  is  ap- 
pointed by  the  Court,  the  master  is  not  liable,  as  the 
attorney  is  then  discharging  a  duty  incumbent  on 
him,  by  virtue  of  his  relation  to  the  Court.4 

§  311.  A  fair  trial  by  jury,  in  all  graver  cases,  is 

1  Maryland,  Dorsey's  Laws,  &c.  92  ;  Virginia,  Kev.  Code  (1849), 
753,  754;  North  Carolina,  Rev.  Statutes  (1837),  581,  582,  &o.; 
South  Carolina,  Statutes  at  Large,  vii,  354  et  seq.;  Georgia,  Cobb's 
New-Digest  (1851),  851, 982,  986, 1019;  Alabama,  Code  of  1852, 
595 ;  Mississippi,  Hutchinson's  Code,  521,  949 ;  Arkansas,  Dig. 
of  1848,  Part  XII,  ch.  li;  Missouri,  Rev.  Statutes  (1845),  413; 
Tennessee,  Caruthers  &  Nich.   Dig.  675,  683;  Texas,  Hartley's 
Digest,  §  2539  et  seq. ;  Delaware,  Rev.  Code  (1852),  ch.  Ixxx, 
§25. 

2  See  Rev.  Statutes  of  North  Carolina  (1837),  583 ;  Rev.  Code 
of  Virginia  (1849),  787 ;  Constitution  of  Arkansas,  §  25 ;  Consti- 
tution of  Missouri,  Art.  iii,  §  27. 

3  See  Macon  v.  Davis,  13  Ga.  68 ;  Rev.  Stat.  of  North  Carolina, 
583;    Rev.  Code  of  Virginia,  787;    Code  of  Alabama  (1852), 
§  3329 ;  Hutchinson's  Miss.  Code,  522. 

*  Manning  v.  Cordell,  6  Miss.  471. 


OFFENCES   COMMITTED    BY   SLAVES.  269 

granted  by  the  statutes  of  every  State;  and  the 
same  safeguards,  to  secure  impartiality,  are  thrown 
around  their  selection,  as  is  afforded  to  a  citizen 
charged  with  a  like  offence.1 

So,  also,  that  principle  of  law  which  protects  a 
citizen  from  being  twice  charged  criminally  with  the 
same  offence,  throws  its  shield  over  the  slave.  So 
that,  if  an  inferior  Court  take  cognizance  of  an  act 
committed  by  a  slave,  and  inflicts  punishment  there- 
for, this  sentence  may  be  pleaded  in  bar  in  a  higher 
tribunal,  where  the  slave  is  charged  capitally  for  the 
same  offence.2 

§  312.  The  same  rules  which  govern  the  Courts, 
as  to  the  frame  of  the  indictment  and  the  order  of 
pleading  in  ordinary  cases,  apply  to  cases  against 
slaves,  except  where  they  are  necessarily  inappli- 
cable from  the  nature  and  condition  of  the  slave.3 
Descriptive  allegations  in  the  indictment  should 
therefore  be  made  with  reasonable  certainty  ;4  and  if 
the  Court  be  of  limited  jurisdiction,  the  facts  neces- 
sary to  give  jurisdiction  should  be  stated.5  If,  how- 
ever, the  Court  is  of  general  jurisdiction,  these  alle- 
gations are  unnecessary.6 

§  313.  The  right  of  the   master  to  control  his 

1  In  the  following  States,  by  their  Constitutions,  Alabama,  Mis- 
souri, Arkansas,  Texas.     By  statutes,  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  Georgia,  Kentucky,  Tennessee,  Louisiana, 
Mississippi.     In  North  Carolina,  by  Act  of  1793,  the  jury  must  be 
of  slave-owners.     See  State  v.  Ivin,  1  Dev.  142. 

2  Ex  parte,  Jesse  Brown,  2  Bailey,  323.     In  Georgia  by  statute, 
Cobb's  New  Dig.  984. 

3  The  State  v.  Posey,  4  Strobh.  103. 

«  Wash  v.  The  State,  14  S.  &  M.  120. 
5  State  v.  Peter,  Geo.  Dec.  Pt.  I,  46. 
8  Anthony  v.  The  State,  9  Geo.  264. 


270  LAW  OF  NEGRO   SLAVERY. 

slave  is  subordinate  to  the  right  of  the  State  to  hold 
the  slave  amenable  to  its  laws ;  but  it  continues  even 
during  the  trial  of  the  slave,  so  far  as  it  does  not 
interfere  with  the  latter  and  superior  right.  Hence, 
the  master,  during  the  progress  of  the  cause,  may 
make  consents  and  waivers  which'  will  be  binding 
on  the  slave,  such  as  agreements  to  a  mistrial,  or  the 
withdrawal  of  a  juror.1 

All  motions  or  responses  to  motions,  must  be  made 
by  the  master  or  the  counsel  of  the  slave. 

§  314.  A  consequence  of  the  subordination  of  the 
master's  rights  to  the  superior  rights  of  the  State  is, 
that  the  master  cannot  legally  obstruct  his  arrest  or 
assist  his  escape.  For  the  latter  case,  many  of  the 
States  have  provided  penalties.2  Independent  of 
these,  the  master  would  not  only  be  an  accessory 
after  the  fact,  but  any  sale  of  the  slave,  even  to  an 
innocent  purchaser,  would  be  void,  as  against  public 
policy.3 

§  315.  The  rules  of  evidence  are  the  same  as  those 
which  are  administered  in  other  criminal  cases,4  ex- 
cept that  slaves  and  free  persons  of  color  are  compe- 
tent witnesses  for  or  against  the  prisoner.6  Hence, 
it  is  illegal  to  admit  in  evidence  the  opinion  of  the 
committing  magistrate,  that  the  slave  was  guilty  of 

1  Elijah  v.  The  State,  1  Humph.  102. 
3  Georgia,  New  Dig.  (1851),  975. 

3  Doughty  v.  Owen,  24  Miss.  404. 

4  The  State  v.  Ben,  1  Hawks,  434.     In  Georgia,  by  express 
statute,  Cobb's  New  Dig.  (1851),  986. 

*  In  Maryland  and  South  Carolina,  their  testimony  must  be  cor- 
roborated by  pregnant  circumstances.  Dorsey's  Laws,  &c.  92 ;  Stat. 
at  Large,  vii,  356. 


OFFENCES   COMMITTED    BY   SLATES.  271 

a  capital  offence.1  So,  also,  the  good  character  of 
the  slave  is  admissible  to  repel  the  presumption  of 
guilt.3  And,  on  the  other  hand,  his  bad  character 
cannot  be  placed  in  issue,  except  in  the  same  man- 
ner as-  that  of  other  persons  charged  with  a  crime. 
So,  as  a  general  rule,  confessions  made  by  slaves  are 
admissible  in  evidence  on  the  same  terms  as  in  other 
cases,  but  they  should  be  received  with  great  caution, 
and  allowed  but  little  weight,  especially  when  made 
to  the  jailor  or  arresting  officers,  for  the  habit  of 
obedience  in  the  slave  compels  him  to  answer  all 
questions  of  the  idlest  curiosity,  while  his  menda- 
cious disposition  will  always  involve  even  the  most 
innocent  in  the  most  contradictory  inconsistencies. 

§  316.  Is  the  master  a  competent  witness  for  or 
against  the  slave  ?  In  the  former  case  he  has  large 
pecuniary  interests  in  securing  an  acquittal.  In  the 
latter,  in  many  of  the  States,  he  is  liable  for  costs 
on  conviction,  and,  quoad  hoc,  is  a  party  to  the  case. 
The  better  opinion  is,  that  he  is  a  competent  wit- 
ness in  either  case.  In  the  words  of  Chief  Justice 
Henderson,  "  the  interest  at  stake  being  so  entirely 
different  from  that  which  is  brought  forward  to  pro- 
tect the  witness  from  giving  evidence,  or  to  exclude 
him  if  willing,  is  not  to  be  weighed  in  the  same 
balances  with  mere  pecuniary  interest.  It  is  so 
transcendent  in  its  nature,  that  its  weight  is  not  to 
be  ascertained  by  mere  money  balances."3 

1  Allen  v.  The  State,  9  Geo.  492. 

2  Pierce  v.  Myrick,  1  Dev.  845 ;  Dave  v.  The  State,  22  Ala. 
N.  S.  33. 

3  The  State  v.  Charity,  2  Dev.  547.     The  judgment  of  the  Court 
was  the  other  way;  but  I  adopt,  as  the  better  law,  the  dissenting 


272  LAW  OF  NEGRO   SLAVERY. 

§  317.  A  more  difficult  question  is  presented  in 
the  admissibility  of  confessions  made  by  the  slave 
to  the  master.  The  former  is  bound,  and  habituated 
to  obey  every  command  and  wish  of  the  latter.  He 
has  no  will  to  refuse  obedience,  even  when  it  involves 
his  life.  The  master  is  his  protector,  his  counsel, 
his  confidant.  He  cannot,  if  he  will,  seek  the  advice 
and  direction  of  legal  counsel.  Every  consideration 
which  induces  the  law  to  protect  from  disclosures 
confidential  communications  made  to  legal  advisers, 
applies  with  increased  force  to  communications  made 
(l>y  a  slave  to  his  master.  Moreover,  experience 
shows,  that  the  slave  is  always  ready  to  mould  his 
\answers  so  as  to  please  the  master,  and  that  no  con- 
(fidence  can  be  placed  in  the  truth  of  his  statements. 
Such  communications  should  be  excluded  from  the 
jury;  nor  should  they  be  admitted  even  if  the  mas- 
ter was  willing  to  testify ;  for,  unfortunately,  there 
are  many  masters  who  would  not  have  the  moral 
courage  to  plead  their  privilege,  under  such  circum- 
stances.1 

§  318.  Slaves,  not  being  included  in  the  ordinary 
criminal  laws,  cannot  be  bailed  by  the  master  after 
commitment,  and  before  trial,  unless  by  express  sta- 
tutory provision.  Should  bail  be  allowed,  the  master 
and  his  sureties  might  be  responsible  on  their  bond 
as  a  voluntary  obligation,  but  the  officer  taking  it 
would  be  liable  for  an  escape. 

§  319.  We  shall  see  hereafter  how  far  the  master 

opinion  of  the  Chief  Justice.     In  Georgia,  he  is  made,  by  statute, 
a  competent  witness.     New  Dig.  974. 

1  The  State  v.  Charity,  2  Dev.  543;  especially  the  able  Opinion 
of  C.  J.  Henderson. 


OFFENCES  COMMITTED  BY  SLAVES.        273 

is  liable  for  the  acts  of  his  slave.  Criminal  acts  not 
done  by  his  order,  do  not  create  a  responsibility  upon 
the  master.  Hence,  in  the  absence  of  express  sta- 
tute, he  would  not  be  liable  for  the  costs  upon  a  con- 
viction. In  nearly  all  the  States,  this  question  has 
been  regulated  by  statute.  On  the  other  hand,  he 
would  have  no  claim  upon  the  State  for  his  loss, 
arising  from  the  execution  of  the  slave.  In  some  of 
the  States,  to  induce  masters  not  to  screen  their 
slaves  from  prosecution  for  offences,  a  part  or  all  of 
the  value  of  a  slave  executed  is  paid  by  the  State. 

§  320.  It  will  not  be  within  our  plan  to  analyze 
the  several  slave  codes  of  each  State,  and  specify  the 
acts  which,  when  committed  by  slaves,  are  declared 
thereby  to  be  crimes ;  nor  to  point  out  the  tribunals 
established  in  each  State,  for  the  trial  and  punish- 
ment of  these  crimes.  These  laws  vary  somewhat 
in  the  several  States,  being  more  or  less  rigid,  ac- 
cording to  the  situation  and  feelings  of  the  citizens 
of  each.  Thus,  in  some  States,  insolence  of  a  slave 
towards  a  white  person,  is  an  offence  for  which  he 
may  be  tried  and  punished.1  While,  in  most  of  the 
States,  such  conduct  is  left  to  be  punished  by  the 
master  on  complaint,  or  redressed  by  the  person  so 
offended  by  chastisement,  he  being  liable  for  any 
excess.2  It  follows,  from  what  we  have  previously 
said,  that  no  Court  has  jurisdiction  of  offences  by 
slaves,  except  those  to  which  such  jurisdiction  is 
granted  by  statute.3 

1  Per  O'Neal,  J.,  in  Ex  parte  Boylston,  2  Strobh.  41 ;  Hutch- 
inson's  Mississippi  Code,  517. 
8  State  v.  Jarrott,  1  Ired.  76. 
»  See  State  v.  Mary  Hage,  1  Bailey,  275. 
18 


274  LAW  OF  NEGRO   SLAVERY. 

§  321.  If  the  statute  defining  the  crimes  of  which 
slaves  may  be  guilty,  does  not  enumerate  them,  but 
after  specifying  capital  crimes,  declares  that  "  all 
other  offences,"  when  committed  by  slaves,  shall  be 
punished,  &C.,1  the  Court  must  look  to  the  general 
penal  code  for  the  "  other  offences,"  in  their  nature 
applicable  to  slaves,  and  cannot  punish  for  any  act 
not  thereby  declared  penal.2 

§  322.  We  have  heretofore  considered  how  far  the 
slave  is  justified  in  repelling  force  by  force.3  "  Vim 
vi  defendere,  omnes  leges  omniaque  jura  permit- 
tunt."  "  To  repel  force  by  force,  all  systems  of 
law  permit."  But  as  a  certain  amount  of  force  is 
legally  exercised  over  the  slave,  to  justify^ is  resist- 
ance by  force  it  must  appear  that  such  resistance 
was^necess^ary^  to  protect  his  right  of  self-preserva- 
tion^either  as  to  life  or  limb.  But  even  this  must 
be  receivecTwlth  some  qualification,  for  if  the  slave 
was  originally  the  wrongdoer,  and  resisting  lawful 
authority,  he  cannot  afterwards  justify  a  homicide, 
by  showing  a  reasonable  sense  of  imminent  danger 
to  his  own  life.4 

§  323.  We  have  also  seen  that,  while  the  homi- 
cide of  a  white  person  by  a  slave  may  be  the  offence 
of  manslaughter,5  yet  the  same  provocation  which 
will  so  reduce  the  offence  in  a  citizen,  will  not  in  a 
slave.  A  legal  provocation  for  a  slave,  is  such  as, 
having  due  regard  to  the  relative  condition  of  the 

>  As  in  Georgia,  New  Dig.  987. 

3  See  Grady  v.  The  State,  11  Geo.  253. 

3  Ante,  §§  98,  99. 

4  Dave  v.  The  State,  22  Ala.  N.  S.  35;  The  State  v.  Will,  1 
Dev.  &  Bat.  121.  5  Ante,  §  99. 


OFFENCES   COMMITTED   BY   SLAVES.  275 

white  man  and  the  slave,  and  the  obligation  of  the 
latter  to  conform  his  instinct  and  his  passions  to  his 
condition  of  inferiority,  would  provoke  a  well-dis- 
posed slave  into  a  violent  passion.1  Hence,  the  mere 
fact  of  an  engagement,  on  a  sudden  heat  of  passion, 
would  not  of  itself  form  such  a  provocation.2 

§  324.  Subordination  and  obedience  being  not  only 
the  duty  of  the  slave,  but  absolutely  necessary  to  the 
preservation  of  social  order,  insubordination,  and  in- 
surrection or  rebellion,  are  offences  recognized  and 
punished  severely  in  all  the  States.  The  slave  be- 
comes an  outlaw  so  soon  as  he  places  himself  in  a 
state  of  insurrection,  and  by  many  of  the  codes  his 
homicide  is  justified.  It  becomes,  then,  a  question 
of  importance  to  define  accurately  what  constitutes 
the  offence  of  insurrection  or  rebellion.  Mere  in- 
subordination does  not,  else  every  fugitive  slave 
would  be  in  a  state  of  insurrection ;  and  yet,  to  a 
certain  extent,  every  runaway  is  rebelling  against 
the  authority  of  the  master.  On  the  other  hand,  it 
is  not  necessary  that  there  should  be  a  concerted 
plot  or  conspiracy,  on  the  part  of  several  slaves,  to 
constitute  an  insurrection,  else  a  single  slave  might 
defy  all  peaceable  attempts  to  recapture  him.  The 
ingredients,  therefore,  necessary  to  place  a  slave  in 
a  state  of  insurrection  or  rebellion  are,  that  he 

1  The  State  v.  Jarrott,  1  Ired.  76.     An  able  Opinion  by  Judge 
Gaston. 

2  Ibid.     In  The  State  v.  Caesar,  9  Ired.  391,  the  beating  of 
prisoner's  friend  by  drunken  rowdies,  was  held  a  sufficient  provo- 
cation by  a  majority  of  the  Court.     But  qucere  of  the  correctness 
of  this  decision  ?     Had  it  been  his  wife,  or  his  child,  there  would 
have  been  more  excuse  for  the  sudden  heat  of  passion. 


276  LAW  OF   NEGRO    SLAVERY. 

should  be  openly  resisting  lawful  authority,  and  that 
this  resistance  should  be  by  such  force  as  indicates 
an  intention  to  maintain  it  to  the  shedding  of  blood.1 

§  325.  It  follows  from  this,  that  a  master,  over- 
seer, or  employer,  cannot  be  justified  in  killing  or 
maiming  a  slave  merely  for  the  purpose  of  subduing 
him.2  Nor  would  either  of  these,  or  a  patroller,  be 
authorized  to  maim  or  kill  a  slave  who  is  seeking, 
without  such  force,  to  escape  from  their  control.3 
Much  less  would  one,  who  had  no  lawful  right  to 
control  the  slave,  be  protected  in  perpetrating  such 
acts.4 

§  326.  A  question  suggests  itself  here  which,  per- 
haps, would  more  properly  be  considered  hereafter, 
in  connection  with  the  master's  rights  for  illegal 
interference  with  and  trespasses  upon  his  slave ;  and 
that  is,  how  far  a  third  person,  who  persuades  or 
compels,  or  otherwise  induces  a  slave  to  commit  a 
crime  by  which  his  life  is  forfeited,  is  liable  to  the 
master  in  damages  for  the  injury  to  his  property.  It 
has  been  held,  properly,  that  if  a  person  furnishes 
spirituous  liquors  to  a  slave,  sufficient  to  intoxicate 
him,  and  this  drunkenness  causes  the  slave  to  expose 
himself  so  as  to  produce  death,  the  person  furnishing 
the  liquors  is  liable  to  the  master  for  the  value  of 
his  slave.5  On  principle,  it  would  seem,  that  if  the 

»  See  Dave  v.  The  State,  22  Ala.  N.  S.  33. 

3  Wooley  v.  The  State,  11  Humph.  172. 

3  Ante,  §  96;  Brooks  v.  Ashburn,  9  Ga.  298;  The  State  v.  Will, 
1  Dev.  &  Bat.  166  ;  Copeland  v.  Parker,  3  Ired.  513. 

«  Arthur  v.  Wells,  2  Rep.  Con.  C.  S.  C.  314;  1  Nott  &  McC. 
182. 

5  Harrison  v.  Berkeley,  1  Strobh.  125. 


OFFENCES  COMMITTED  BY  SLAVES.        277 

crime  by  the  slave  is  the  immediate  and  proximate 
effect  of  the  conduct  of  the  person  commanding  or 
persuading,  he  would  be  liable  to  the  master  in 
damages.  But  if  the  crime  cannot  be  traced  as  the 
natural  and  proximate  consequence  of  such  person's 
misconduct,  and  uncontrolled  by  the  agency  of  the 
slave  himself,  he  is  not  liable.1 

1  Kelly  v.  The  City  Council,  4  Rich.  426. 


CHAPTER  XIX. 

OF   MANUMISSION,    AND   HEREIN   OF   DIRECT 
MANUMISSION   BY   DEED. 

§  327.  WE  come  next  to  consider  in  what  manner 
the  slave  may  be  relieved  from  his  bondage,  and  the 
effect  of  such  release.  Manumission  is  as  universal 
as  slavery ;  wherever  the  latter  existed,  the  privi- 
lege of  being  relieved  therefrom  has  concurrently 
been  acknowledged,  more  or  less  trammelled  by  for- 
malities or  conditions,  according  to  the  policy  of  the 
State.' 

The  act,  manumission,  derives  its  name  from  the 
Roman  law.  The  English  writers  adopted  with  the 
name,  the  definition  and  explanation.  Thus  Glan- 
ville :  "  Est  libertatis  datio,  nam  quamdiu  quis  in 
servitute  est,  manui  et  potestati  sui  domini  sup- 
positus  est ;  et  cum  manumissus  fuerit,  iose  est  a 
manu  et  potestate  domini  sui  liberatus."3  "  It  is  the 
gift  of  liberty ;  for  one  in  slavery  is  supposed  to  be 
in  the  hand  or  power  of  his  master,  and  when  he  is 
manumitted,  he  is  liberated  from  the  hand  and  power 

1  Colchester  v.  Lyme,  13  Conn.  277. 
3  Institutes,  Lib.  I,  tit.  v. 

8  Lib.  V,  ch.  v ;  Lib.  II,  ch.  xiv ;  see  also  Bracton,  Lib.  I,  ch. 
v,  §8;  Brit.  fol.  78. 


MANUMISSION.  279 

of  his  master."  So  Littleton  :  "  Manumittere  quod 
idem  est  quod  extra  manum,  vel  extra  potestatem 
alterius  ponere."1  "  To  manumit,  which  is  to  place 
one  beyond  or  without  the  hand  (manum)  or  power 
of  another." 

§  328.  The  right  to  manumit  a  slave,  arising  from 
the  power  of  the  owner  of  property  to  renounce  his 
right  to  him,  requires  no  permission  or  sanction  of 
law  to  give  it  validity  and  effect.  On  the  contrary, 
it  requires  the  most  explicit  prohibition  of  law  to 
restrain  this  right.2  Considerations  of  public  policy 
have  imposed  restraints  upon,  and  in  some  cases  pro- 
hibited entirely,  the  exercise  of  this  right.3  We  will 
consider  these  as  we  progress  in  this  investigation. 
Unrestrained  by  statute,  then,  every  owner  may 
manumit  his  slave,  provided  he  or  she  labors  not 
under  some  disability,  such  as  nonage,  or  coverture, 
or  lunacy,  or  duress.4 

§  329.  Manumission  being  the  disclaimer  of 
ownership,  of  course  no  one  can  manumit  who  is  not 
the  owner.5  Hence,  one  of  several  joint  owners 

1  Sect.  204 ;  see  Coke's  Comments. 

3  McCuthen  et  al.  v.  Marshall  et  al.  8  Peters,  238. 

3  Ibid.     Montesquieu,  in  vindication  of  the  necessity  and  policy 
of  such  restraints,  mentions  the  fact  of  the  freedmen  among  the 
Volsinienses,  becoming  masters  of  the  suffrages,  making  an  abo- 
minable law,  giving  themselves  the  right  of  lying  first  with  the  girls 
married  to  the  free  born.     Esprit  des  Lois,  Liv.  XV,  ch.  xvii. 

4  In  some  States,  infants  above  a  certain  age,  though  still  minors, 
may  manumit.     Minney  v.  Cartwright,  3  Marsh.  493.     Like  all 
other  contracts  by  infants,  the  manumission  is  only  defeasible  by 
him.     10  John.  132.     The  civil  law  allowed  minors  to  manumit 
under  certain  circumstances.     Henry's  Points  in  Manumission. 

5  Ferguson  et  al.  v.  Sarah,  4  J.  J.  Marsh.  103;  Wallingsford  v. 
Allen,  10  Peters,  583.     So  a  deed  by  the  true  owner  will  not  effect 


280  LAW  OF  NEGRO 'SLAVERY. 

cannot,  and  the  result  would  be  the  renunciation  of 
his  right  to  the  benefit  of  his  co-tenants ;  the  exer- 
cise of  it,  by  the  slave,  being  inconsistent  with  their 
rights.1  Such  was  the  German  law  :  "  Servus  com- 
munis  ab  uno  sociorum,  e  manu  dimissus  illico,  liber 
non  fieret,  quin  potius  altera  pars  servi  accresceret 
alteri  socio,  qui  in  manumissionem  non  consensisset."3 
"A  slave  held  in  common,  and  manumitted  by  one 
of  the  co-tenants,  will  not  be  made  free,  but  rather 
the  interest  of  the  other  tenant,  who  did  not  consent 
to  the  manumission,  will  be  increased  to  that  extent." 

The  manumission  is  effectual  so  far  as  to  deprive 
the  person  manumitting  of  his  interest,  which  he 
cannot  recall.3 

§  330.  So  the  persons  entitled  only  to  the  use  and 
profits  of  slaves  cannot  manumit  them,  they  having 
no  title.  Thus  the  ecclesiastics  could  not  manumit 
the  slaves  attached  to  the  Church.  In  favor  of 
liberty,  one  of  the  councils  decreed,  that  such  manu- 

emancipation  against  one  who  has  held  by  adverse  possession  for 
the  period  limited  by  the  statute.  Givens  and  another  v.  Mann, 
6  Munf.  191.  Such  was  also  the  civil  law.  Voet,  ad  Pandectas, 
tit.  De  Rei  Vindicatione,  N.  17. 

1  Thompson  v.  Thompson,  4  B.  Monr.  505.     This  was  in  accord- 
ance with   the    civil   law  right,  "jus    accrescendi."      Justinian, 
however,  decreed  that  the  joint  owner  should  accept  a  fair  compen- 
sation for  his  interest  from  the  slave.     Dig-  xl,  12,  30 ;  2  Inst. 
tit.  7 ;  contra  Oatfield  v.  Waring,  14  John.  R.  188.     The  rule  of 
this  case  is  correct,  perhaps,  when  the  co-tenant  manumitting  has 
exclusive  possession.     His  co-tenant  may  treat  the  manumission  as 
a  conversion.     Even  this,  however,  would  be  at  his  election. 

2  Potgies.  De  Stat.  Serv.  Lib.  IV,  cap.  ii,  §  3. 

3  Thompson  v.  Thompson,  4  B.  Monr.  505  j  8  Id.  544.     In  the 
latter  case,  it  is  held,  that  if  a  majority  of  the  co-tenants  join  in  the 
manumission,  the  gift  of  liberty  is  perfect.     But  qucere? 


MANUMISSION.  281 

mission  should  be  valid  if  the  ecclesiastics  would 
replace  two  slaves  for  every  one  thus  manumitted.1 

So,  a  tenant  for  life  cannot  enfranchise  the  slave, 
to  the  destruction  of  the  interests  in  remainder ;  and 
as  the  law  cannot  recognize  a  temporary  freedom, 
the  gift  would  operate  as  a  renunciation  of  the  life- 
estate  in  favor  of  the  remaindermen.2  On  the  con- 
trary, the  remaindermen  may  manumit,  to  take 
effect  at  the  death  of  the  tenant  for  life. 

So,  also,  in  those  States  where  the  widow  is  enti- 
tled to  one-third  of  her  husband's  personal  estate,  a 
clause  of  manumission  in  his  will  cannot  affect  her 
rights.3  In  fact,  even  the  State  cannot  manumit  a 
slave  so  long  as  slavery  exists,  without  the  master's 
consent.4 

§  331.  So,  again,  a  person  may  not  manumit  his 
slave,  so  as  to  relieve  himself  from  any  forfeiture  or 
liability  which  he  may  have  incurred  by  reason  of 
such  ownership,  either  for  the  support  of  the  aged 
and  infirm,  or  for  damages  for  injuries  done  to  ano- 
ther. Nor  can  an  insolvent  manumit  his  slaves  to 
the  damage  of  his  creditors.5  The  Roman  law  re- 

1  Potgies.  Lib.  IV,  cap.  ii,  §  4. 

3  See  Tom  Davis  v.  Tingle,  8  B.  Monr.  542. 

8  See  Virginia  Rev.  Code,  525;  Miss.  Rev.  Code,  386;  2  Litt. 
&  Swift's  Dig.  1246. 

4  Allen  v.  Peden,  2  Law  Rep.  638. 

5  Allen  v.  Jim  Sharp,  7  Gill  &  J.  96.     The  onus  of  impeaching 
the  deed  lies  on  the  creditor.     7  Gill  &  J.  96.     If  the  slave  has 
actually  enjoyed  freedom  under  the  deed  of  manumission,  and  the 
deed  is  set  aside,  not  for  fraud,  but  simply  as  avoiding  the  rights 
of  creditors,  it  has  been  held,  that  it  was  effectual  till  set  aside, 
and  issue  born  pending  the  time  are  free.     Parks  v.  Hewlett,  &c. 
9  Leigh,  511 ;  Union  Bank  v.  Benham,  23  Ala.  143. 


282  LAW  OF  NEGRO   SLAVERY. 

quired  that  it  should  be  done  with  intent  to  defraud, 
else  it  should  be  valid.  The  same  distinction  is  re- 
cognized in  some  of  the  States.1 

So,  also,  the  Roman  law  forbade  persons  con- 
demned to  die,  or  those  condemned  to  slavery  as  a 
punishment  to  manumit  their  slaves.2 

§  332.  Almost  every  State  has  placed  some  re- 
straint as  to  the  slaves  capable  of  being  manumitted. 
Thus,  the  old  and  sick,  who  would  become  burdens 
on  the  community,  and  the  young  and  feeble,  inca- 
pable of  supplying  their  own  wants,  are  by  many 
laws  forbidden  the  right  of  emancipation  ;  certain 
ages  being  specified  between  which  the  right  of  ac- 
cepting freedom  is  allowed.3 

So,  also,  the  disposition  to  manumit  has  in  some 
countries  so  depopulated  the  farms  and  multiplied 
the  number  of  idle  drones,  that  restrictions  have 
been  found  necessary  as  to  the  number  emanci- 
pated.4 

Restraints  on  manumission  were  common  in  all 
the  English  West  Indies  prior  to  the  Emancipation 
"Act.  Manumission  by  implication  was  not  recog- 
nized. In  St.  Vincents,  one  hundred  pounds  sterling 

>  Ayliffe's  Pandect  of  Civil  Law,  Bk.  II,  tit.  viii,  p.  90.  Fer- 
guson et  al.  v.  Sarah,  4  J.  J.  Marsh.  103.  See  Revised  Code  of 
Virginia,  434 ;  Mississippi  Rev.  Code,  386 ;  Civil  Code  of  Loui- 
siana, Art.  190 ;  2  Litt.  &  Swift's  Digest,  1155. 

2  Aylifle,  as  above.    The  Lex  Aelia  Sentia,  and  Lex  Junia  Nor- 
bana,  were  the  principal  laws  restraining  manumission.     The  Lex 
Fusia  Caninia  was  made  to  prevent  imprudent  manumissions  by 
will. 

3  Trudeau's  Exr.  v.  Robinette,  4  Martin  (La.),  577. 

4  Potgies.  Lib.  IV,  cap.  ii;  §  6.     Thomas,  Dissertat.  de  Imped. 
Manumis.  cap.  iv. 


MANUMISSION. 


was  required  to  be  paid  into  the  treasury,  for  each 
slave  sought  to  be  manumitted.1 

§  333.  Manumission  may  be  either  in  presenti  or 
infuturo,  unless  restricted  by  statute.  In  the  latter 
case  the  condition  of  slavery  remains  until  the  time 
when  the  manumission  takes  effect.3  Such  persons 
are  called  by  the  Roman  law  statuliberi.  In  the 
meantime,  their  issue  are  slaves.  In  the  former 
case,  the  manumission  takes  effect  immediately,  and 
their  future  issue  are  free.  A  reservation  in  the 
deed  that  the  issue  shall  be  slaves,  would  be  void.3 
We  have,  under  a  former  chapter,  considered  the 
several  questions  arising  from  these  general  princi- 
ples as  to  the  status  of  the  issue,  and  shall  not  re- 
peat them  here.4 

§  334.  There  is  no  middle  ground  between  slavery 
and  freedom ;  no  such  thing  as  qualified  freedom,  or 
qualified  slavery.  If  the  negro  is  a  slave,  he  cannot 
enjoy  any  of  the  rights  of  a  freeman,  denied  to 
other  slaves.  If  he  is  free,  he  cannot  be  forced  to 
submit  to  any  bonds,  not  imposed  on  other  free  per- 
sons of  color.5 

§  335.  At  the  same  time  the  law  does  not  prohibit 
a  master,  either  in  a  sale,  or  gift,  or  bequest,  from  in- 
serting a  provision  looking  to  the  comfort  of  a  slave, 
such  as  the  payment  of  a  small  annuity,  the  en- 


1  2  H.  Black.  514,  note. 

*  Mayho  v.  Sears,  3  Iredell,  227. 
8  Fulton  v.  Shaw,  4  Rand.  597. 

*  Ante,  chap,  iii,  §§  70  to  82. 

5  Henry  v.  Nunn,  11  B.  Monr.  239;  Wynn  et  al.  v.  Carroll  et 
al.  2  Grat.  227. 


284  LAW  OF  NEGRO  SLAVERY. 

forcement  of  humane  treatment,  &C.1  And,  though 
the  slave  has  no  legal  remedy  by  which  to  enforce 
such  provisions,  a  condition  for  the  forfeiture  of  the 
title  upon  a  failure  to  perform,  would  be  enforced  in 
favor  of  the  person  entitled  in  such  an  event. 

§  336.  Manumission  may  be  either  direct  and  in- 
tentional, or  indirect  and  by  implication ;  of  the  former 
class  are  manumission  by  deed,  by  will,  or  by  con- 
tract ;  of  the  latter,  are  manumission  by  effect  of 
law,  either  foreign  or  domestic,  and  by  implication. 
"We  will  consider  of  these  as  far  as  possible  in  the 
order  in  which  they  are  named. 

§  337.  Manumission  by  deed  has  been  as  ancient 
as  the  art  of  writing  ;a  but  in  this  class  we  include 
not  only  written  deeds,  but  every  express  act,  inter 
vivos,  granting  liberty  to  the  slave.  These  were  very 
various  in  different  nations. 

No  particular  formality  was  prescribed  by  the 
Grecian  laws,  nor  were  such  required  at  Rome 
during  the  earlier  days  of  the  kingdom  and  repub- 
lic. Subsequently,  by  various  decrees,  certain  pre- 
'scribed  forms  were  to  be  complied  with ;  and,  at  a 

1  Spalding  v.  Grigg.  4  Geo.  75;  Drane  v.  Beall,  21  Ga.  23.  But 
see  Cunningham  v.  Cunningham,  Conf.  Rep.  353. 

*  The  following  is  the  form  of  an  ancient  deed  of  manumission : 
"Te  ilium  aut  ilium  ex  familia  nostra  a  presente  die,  ab  omni  vin- 
culo  servitutis  absolvimus,  ita  ut  deinceps,  tanquam  si  ab  ingenuis 
parentibus  fuisses  procreatus,  vitam  ducas  ingenuam,  et  nulli 
hsereduin  aut  prohasredum  nostrorum  vel  cuicunque  servitium  nee 
libertinitatis  obsequium  debeas,  nisi  soli  Deo,  cui  omnia  subjecta 
sunt ;  peculiari  concesso,  quod  habes,  aut  deinceps  elaborare  poteris." 
Marculfus,  Lib.  II,  forms  32,  33,  34.  For  various  forms,  see  Du 
Gauge's  Glossary,  "  Manumissio ;"  also  Appendix  to  Potgiesser, 
p.  920  et  seq. 


MANUMISSION.  285 

still  later  day,  the  consent  of  a  tribunal,  established 
for  that  purpose,  was  necessary  to  make  valid  the 
manumission.  The  usual  forms  were  the  census  his- 
trails,  the  vindicta,  and  the  testamentum.1  The  first 
was  effected  by  the  master's  entering  the  name  of 
the  slave  upon  the  list  of  citizens.  The  second  was 
the  stroke  from  the  vindicta,  or  freedom-rod,  of  the 
preetor.2  The  last  was  by  will,  thus :  Cicero,  si  neque 
censu,  neque  vindicta,  nee  testamento  liber  factus  est, 
nan  est  liber*  The  former  mode  went  into  disuse 
about  the  time  of  Vespasian.  Constantine  substi- 
tuted in  its  place  the  manumission  in  sacrosanctis 
ecclesiis,  whereby,  in  the  presence  of  the  congrega- 
tion, on  a  feast  day,  either  orally  or  in  writing,  de- 
clared the  slave  to  be  free.  In  the  time  of  Justinian 
other  modes  were  allowed,  as  by  letter,  in  the  pre- 
sence of  friends,  &c.4  Among  the  Germans  and 
Lombards,  the  manumission  in  the  church,  circa 
altare,  gave  the  name  of  tabularii  to  the  freedmen. 
A  mode  peculiar  to  the  Franks  was,  for  the  master 
to  strike  a  small  piece  of  money  (denarius)  from 
the  hands  of  the  slave  in  the  presence  of  the  king! 
These  freedmen  were  called  denariales.'  Another 

i  Brown's  Civil  Law,  Bk.  I,  ch.  iii. 

3  After  the  slave  was  tapped  with  the  vindicta  or  praetor's  rod, 
his  head  was  shaved,  and  the  cap  of  liberty  put  upon  it.     Hence, 
doubtless,  the  origin  of  the  liberty  cap  elevated  on  a  wand,  in  the 
hands  of  the  Goddess  of  Liberty. 

8  Heinec.  Elem.  Juris.  Lib.  I,  tit.  v,  §  94  et  seq. 

4  Heinec.  as  above.   Justin.  Inst.  Lib.  I,  tit.  v,  §§  1,  2 ;  Ayliffe's 
Pand.  90.    Potgiesser  throws  some  doubt  upon  Constantino's  being 
entitled  to  the  credit  of  originating  this  mode  of  manumission. 
Lib.  IV,  ch.  iv,  §  v. 

5  These  occupied  a  more  honorable  position  than  the  ordinary 
freedmen.     Potgies.  Lib.  IV,  cap.  iii,  §  7. 


286  LAW  OF  NEGRO   SLAVERY. 

mode  among  the  Lombards  was  to  carry  a  slave  to  a 
point  where  two  roads  crossed,  and  then  to  utter,  in 
the  presence  of  witnesses,  these  words :  "  De  quatuor 
viis,  ubi  volueris  ambulare,  liberam  habeas  potesta- 
tem."1  There  were  other  modes,  per  Hantradam, 
per  impetus,  per  sagittam,  per  arma,  in  mallo  publico, 
&c.,  practised  among  these  nations,  but  not  worthy 
a  specific  description.2 

§  338.  In  England,  similar  modes  of  manumis- 
sion were  adopted  from  the  earliest  time.  Manu- 
mission at  the  altar  is  provided  for  as  early  as  the 
laws  of  King  Withraed.3  Full  directions  to  be  fol- 
lowed at  the  County  Court  are  given  in  the  laws  of 
William  the  Conqueror,  even  to  the  "  libera  arma, 
scilicet  lancea  et  gladium,"  which  were  to  be  given 
to  the  freedmen.  The  laws  of  Henry  I  prescribed 
four  different  places  where  manumission  might  be 
effected :  in  ecdesid,  vel  mercato,  vel  comitatu,  vel  liun- 
dreto,  and  a  record  thereof  is  required  to  be  kept. 
The  reason  given  is  rather  curious  :  "  Quia  multi 
potentes  volunt,  si  possunt,  defendere  homines  suos, 
modo  pro  servo,  modo  pro  libero,  sicut  interim  faci- 
lius  sit."4  It  would  seem  from  this,  that  the  differ- 
ence between  the  actual  condition  of  the  slave  and 
the  bondman  was  not  very  distinctly  marked. 

§  339.  In  America,  unless  restricted  by  statutory 
regulations,  it  has  been  held,  in  accordance  with  the 
principles  of  the  common  law,  that  no  formal  mode 

1  Heinec.  Elem.  Jur.  Germ.  Lib.  I,  tit.  ii,  §§  49  to  53 ;  Potgies. 
De  Stat.  &c.  Lib.  IV,  cap.  iii. 

8  Potgies.  De  Stat.  Serv.  Lib.  IV,  cap.  i,  §  v. 
3  Ancient  Laws  and  Institutes  of  England,  17. 
*  Ibid.  213,  254. 


MANUMISSION.  287 

or  prescribed  words  were  necessary  to  effectuate  the 
manumission  of  slaves  j1  that  it  might  be  effected 
by  parol,  and  any  words  were  sufficient  which  evi- 
denced a  renunciation  of  dominion  on  the  part  of 
the  master,  either  in  presenti  or  at  a  specified  future 
period.2  On  the  contrary,  declarations  of  an  inten- 
tion, however  specific,  will  be  insufficient,  unless 
subsequently  carried  into  effect.3 

§  340.  In  every  slaveholding  State,  however,  re- 
strictions, more  or  less  stringent,  have  been  placed 
upon  the  manumission  of  negro  slaves,  and  condi- 
tions prescribed  to  regulate  the  exercise  of  this  pri- 
vilege by  the  master.  According  as  the  policy  of 
the  legislation  of  each  State  inclined  for  or  against 
the  increase  of  a  free  colored  population,  so  the  ten- 
dency of  the  Courts  has  been  either  to  adopt  the 
maxim  of  the  civil  law,  "  In  obscura  voluntate 
manumittentis  favendum  est  libertati,"4  or,  on  the 
other  hand,  to  hold  the  exercise  of  this  privilege  by 
the  master  within  the  strict  letter  of  the  law.  The 
result  is,  a  contrariety  of  decisions,  varying  more 
according  to  the  "  latitude"  of  the  Courts  than  the 
ability  of  the  Judges.  Our  course  shall  be  "the 
middle  way,  in  which  is  safety."5 

1  Lewis  v.  Simonton,  8  Humph.  189;  Fox  v.  Lanbron,  3  Halst. 
275. 

3  The  State  v.  Admrs.  of  Prall,  Coxe,  4 ;  Geer  v.  Huntington, 
2  Root,  364. 

3  The  State  v.  Frees,  Coxe,  259  ;  Bazzi  v.  Rose,  &c.  8  Mart. 
149;  In  the  matter  of  Nan  Mickel,  14  John.  324;   19  John.  53. 

4  Dig.  Lib.  L,  tit.  xvii,  §  179. 

5  For  the  laws  as  to  manumission  : 

In  Maryland,  Dorsey's  Laws,  &c.  337,  342,  597V 
"  Virginia,  Revised  Code,  458-9,  and  note  to  459. 


288  LAW  OF   NEGRO   SLAVERY. 

§  341.  Where  the  law  requires  the  manumission 
to  be  by  "  instrument  in  writing,"  no  formal  words 
are  necessary.  A  certificate  or  letter  of  manumis- 
sion will  be  a  compliance  with  the  statute.1  If  there 
be  a  condition  precedent  to  its  taking  effect,  such  as 
that  the  slave  shall  serve  faithfully  a  certain  period 
of  time,  then  the  deed  takes  effect  only  when  that 
condition  is  performed.2  If,  however,  the  manumis- 
sion be  immediate,  and  there  is  a  subsequent  reser- 
vation of  services,  the  slave  is  emancipated,  not- 
withstanding a  failure  to  perform  those  services.3 
A  sale,  subsequent  to  the  deed  in  the  former  case, 
and  prior  to  the  performance  of  the  condition,  would 
convey  a  perfect  title  to  the  purchaser.  In  the 
latter,  the  sale  would  pass  no  title,  the  master 
having  parted  with  his  dominion.4 

§  342.  To  effect  manumission  by  a  written  instru- 
ment, it  must  show  a  renunciation,  by  the  master, 

In  North  Carolina,  Revised  Statutes  (1837),  585  et  seq. 
"  South  Carolina,  Stat.  at  Large,  viii,  442,  443,  459;  Abstract 

of  Slave  Laws  by  Judge  O'Neal. 
"  Georgia,  Cobb's  New  Dig.  (1851),  983,  991,  1125. 
"  Alabama,  Code  of  1852,  §§  2044,  5  to  8. 
'  Mississippi,  Hutchinson's  Code,  523,  539. 
'  Louisiana,  Civil  Code,  Art.  184  et  seq. 
1  Arkansas,  Dig.  of  1848,  65,  476. 
'  Missouri,  Digest  of  Statutes  (1845),  ch.  167,  Art.  2. 
'  Tennessee,  Caruthers  &  Nicholson's  Dig.  277  et  seq. 
'  Texas,  Hartley's  Digest,  Constitution,  37. 
1  Delaware,  Rev.  Code  (1852),  ch.  80,  sec.  5. 
>  Minney  v.  Cartwright,  3  Marsh.  493. 

2  Julien  v.  Langlish,  9  Mart.  (La.)  205  ;  Dunlap  v.  Archer,  7 
Dana,  30  ;  Kettletas  v.  Fleet,  7  John.  324. 

3  Isaac  v.  West,  6  Rand.  561. 

4  Thrift  v.  Hannah,  2  Leigh,  300;  Case  of  Tom,  5  John.  365. 


MANUMISSION.  289 

of  his  dominion  over  the  slave.  Hence,  a  mere 
permit  to  the  slave  "  to  go  about  his  lawful  busi- 
ness," with  the  addition,  "  this  is  not  to  operate  as 
a  pass  if  he  should  ever  return  to  the  State  of  Mary- 
land, but  he  shall  be  liable  to  be  taken  up  and  treated 
as  a  slave,"  was  held  not  to  be  a  manumission,  the 
negro  having  returned  to  Maryland.1  But,  if  there 
be  an  actual  manumission,  such  a  condition  subse- 
quent, would  be  inconsistent  with  the  gift,  inopera- 
tive and  void.2 

§  343.  Wherever  the  State  has  prescribed  certain 
formalities  which  must  be  complied  with,  or  placed 
any  restrictions  upon  the  exercise  of  the  power  of 
manumission,  it  is  necessary  to  show  a  compliance 
with  these  formalities  or  restrictions,  before  the  deed 
can  take  effect.3  Thus,  if  the  statute  requires  the 
registry  of  the  deed,  the  slave  is  not  free  until  the 
record  is  complete.4  So,  where  the  assent  of  the 
State,  through  its  Legislature,  or  County  Court  or 
other  officer,  is  necessary  to  manumission,  the  act  is 
not  complete  until  such  assent  is  given.5  It  seems, 

1  Maverick  v.  Stokes,  2  Bay.  511  j  1  Brev.  273. 

3  Spencer  v.  Dennis,  8  Gill.  314;  Forward  v.  Tharner,  9  Grat- 
tan,  537. 

»  Clara  v.  Meagher,  5  Har.  &  J.  Ill ;  14  John.  324 ;  19  Ib.  53  ; 
The  State  v.  Emmons,  1  Penn.  10;  Roberts  v.  Mellugen,  9  Miss. 
170.  But  see  State  v.  Pitney,  Coxe,  165 ;  Reuben  v.  Parrish,  6 
Humph.  122. 

4  Givens  v.  Mann,  6  Munf.  191;  Donaldson  v.  Jude,  1  Bibb, 
57  (see  2  J.  J.  Marsh.  230);  Sawney  v.  Carter,  6  Rand.  173; 
Thrift  v.  Hannah,  2  Leigh,  300 ;  Miller  v.  Herbert,  5  Howard, 
U.  S.  72. 

4  Bryan  v.  Dennis,  4  Florida,  445.     Held  otherwise  in  Tennes- 
see.    8  Humph.  185 ;  10  Ibid.  332. 
19 


290  LAW  OF   NEGRO    SLAVERY. 

however,  that  this  assent  may  be  given  even  before 
the  deed  is  executed ;  and  in  that  event  the  deed 
takes  effect  immediately.1  It  is  not  necessary,  in 
those  States  where  the  assent  of  a  Court  is  required 
to  be  given  on  certain  conditions,  that  the  order  of 
the  Court  should  show  that  these  conditions  were 
complied  with.  The  judgment  of  the  Court  will 
be  conclusive  until  set  aside,  and  cannot  be' collate- 
rally attacked.3  It  is  not  conclusive,  however,  as  to 
facts  recited  outside  of  the  action  of  the  Court. 
Thus  an  order,  that  a  slave  be  manumitted  "agree- 
ably to  a  deed  which  said  G.  had  filed,"  is  not  con- 
clusive evidence  that  such  a  deed  was  duly  exe- 
cuted.3 

§  344.  In  several  of  the  States  domestic  manu- 
mission, that  is,  manumission  to  take  effect  within 
the  State,  is  prohibited,  the  increase  of  free  negroes 
being  declared  against  their  policy.  Of  course  all 
deeds  or  wills  attempting  to  manumit  in  opposition 
to  such  policy,  are  pro  tanto  void.4  But  even  in 
these  States  it  is  allowed,  by  deed  or  will,  to  provide 
for  the  immediate  transfer  of  the  slaves  to  some 
other  State  or  country  where  manumission  is  allowed, 

1  6  Yerg.  119  j  or  afterwards  see  Donaldson  v.  Jude;  2  Bibb,  57. 

2  Samson  v.  Burgwin,  3  Dev.  &  Bat.  28 ;  Hartsell  v.  George,  3 
Humph.  255 ;  Greenlow  v.  Rawlings,  3  Humph.  90 ;  Stringer  v. 
Burcham,  12  Ired.  41;  Lewis  v.  Simonton,  8  Humph.  185.     Even 
in  another  State.     Maria  v.  Alterbery,  9  Miss.  369 ;  see  Cully  v. 
Jones,  9  Ired.  168,  as  to  the  effect  of  a  failure  to  give  bond,  when 
required  by  the  Court. 

3  Talbot  v.  David,  2  A.  K.  Marsh.  603. 

*  Moses  v.  Deniger,  6  Rand.  561 ;  Finley  v.  Hunter,  2  Strobh. 
Eq.  208. 


MANUMISSION.  291 

for  the  purpose  of  being  there  emancipated.1  If, 
however,  the  provision  is  made  for  a  future  emigra- 
tion for  that  purpose,  it  would  be  void ;  it  being  in 
contravention  of  that  public  policy  to  increase  the 
number  of  statuliberi  within  the  limits  of  the  State. 
Hence,  in  a  gift  of  slaves  to  A.  for  life  or  years,  and 
at  the  expiration  of  that  estate,  a  provision  for  their 
emigration  to  a  foreign  State,  for  the  purpose  of 
manumission,  the  latter  provision  would  be  void.2 
But  a  bequest  of  slaves  to  an  executor,  requiring 
him  to  apply  to  the  Legislature  for  a  special  act, 
allowing  their  manumission  within  the  State,  and 
on  failure  to  obtain  that,  directing  their  transmission 
to  another  country  for  this  purpose,  would  be  valid.3 
And  a  direction  to  the  executor  to  pay  a  legacy  to 
such  slaves,  in  their  new  home,  would  be  valid,  not- 
withstanding their  incapacity  to  take  while  slaves.4 
§  345.  Any  attempt  to  avoid  the  operation  of 
these  acts,  forbidding  manumission  by  a  trust,  either 
open  or  secret,  for  the  benefit  of  the  slave,  will  be 

1  Cox  v.  Williams,  4  Ired.  Eq.  15;  Thompson  v.  Newlin,  8  Ired. 
Eq.  32  ;  Wooten  v.  Becton,  Ibid.  66.J  Vance  v.  Crawford,  4  Geo. 
445 ;  Sibley  v.  Maria,  2  Florida,  553 ;  Wade  v.  Am.  Col.  Soc.  7 
S.  &  M.  663.  But  this  is  prohibited  in  South  Carolina;  and  it 
•was  held  that  the  act  applied  to  a  will,  admitted  to  probate  before 
the  passage,  of  which  qucere  f  2  Rich.  Eq.  43 ;  see  7  Humph.  388. 

*  Pinckard  v.  McCoy,  22  Ga.  28 ;  Drane  v.  Beall,  21  Ga.  23 ; 
Thornton  v.  Chisolm,  20  Ga.  338. 

»  Cleland  et  al.  v.  Waters,  19  Ga.  35. 

<  Vance  v.  Crawford,  4  Ga.  445;  Wade  v.  Amer.  Col.  Soc.  7  S. 
&  M.  663 ;  Cooper  v.  Blakely,  10  Ga.  263 ;  Cameron  v.  Com.  of 
Raleigh,  1  Ired.  Eq.  436  ;  Cooper  v.  Blakely,  10  Ga.  263. 


292  LAW  OF  NEGRO   SLAVERY. 

illegal  and  void.1  And  such  trust  may  be  proven  by 
parol,  outside  of  the  deed.2 

§  346.  The  trust  being  void,  does  the  deed  or  will 
convey  any  title  to  the  trustee?  If  he  had  no 
agency  in  creating  the  illegal  trust,  was  not  a  party 
to  the  attempt  to  evade  the  law  by  assenting  thereto, 
or  agreeing  to  carry  out  the  same,  then  the  trust 
only  is  void,  and  the  trustee  takes  the  title  freed 
from  the  illegal  trust.3  But  the  whole  conveyance 
or  bequest  is  void  if  the  trustee  was  a  particeps  cri- 
minis  in  the  attempt  to  violate  or  evade  the  law. 
The  grantor  himself  might  not  be  heard,  however, 
to  set  up  his  own  wrong ;  and  the  principle,  in  pari 
delicto,  &c.,  has  been  held  to  apply  where  the  statute 
does  not  declare  the  deed  to  be  absolutely  void." 

So,  also,  an  illegal  bequest  of  freedom  in  remainder 
to  slaves,  after  a  life-estate,  does  not  destroy  or  ren- 
der the  latter  ineffectual.5 

§  347.  A  question  of  some  nicety  arises,  where 
a  deed  of  manumission  is  made  in  a  State  allowing 
thereof,  and  to  take  effect  at  a  future  time,  but  before 
that  period  arrives  the  slave  is  carried  into  another 
State,  where  such  manumission  is  prohibited.  When 

1  White  v.  White,  1  Dev.  &  Bat.  260 ;  Wright  v.  Lowe,  2 
Murph.  354 ;  The  State  v.  Singlebury,  Dudley,  S.  C.  220;  Cun- 
ningham v.  Cunningham,  Conf.  Rep.  353. 

*  Robinson  v.  King,  6  Geo.  539. 

8  The  State  v.  Singlebury,  Dudley,  S.  C.  220 ;  Weathersby  v. 
Weathersby,  13  S.  &  M.  685 ;  Broughton  v.  Telfer,  3  Rich.  431 ; 
Cline  v.  Caldwell,  Hill,  S.  C.  423;  Smith  v.  Dumoody,  19  Ga.  666; 
Drane  v.  Beall,  21  Ga.  23. 

4  Cline  v.  Caldwell,  1  Hill,  S.  C.  423. 

5  Dougherty  v.  Dougherty,  2  Strobh.  Eq.  63. 


MANUMISSION.  293 

the  period  arrives,  what  is  the  status  of  the  slave  ? 
Although  the  legislature  had  prohibited  manumis- 
sion within  the  State,  and  the  increase  of  a  free 
colored  population  is  not  desired,  until  the  legislature 
either  refuse  ingress  into  the  State  to  negroes  occupy- 
ing the  position  of  statuliberi,  or  otherwise  declares 
its  will,  the  lex  loci  must,  upon  principle,  control  and 
give  freedom  to  the  slave.1  In  such  case,  it  has  been 
held,  that  the  applicants  for  freedom  must  prove,  as 
a  fact,  the  existence  of  the  lex  loci.2  The  propriety 
of  this  ruling  we  must  doubt.  We  have  seen  that, 
in  the  absence  of  statutory  inhibition,  the  right  to 
manumit  was  undoubted.  The  presumption  of  law 
therefore  is,  that  the  owner  has  such  a  right  by  the 
lex  loci,  and  the  party  suggesting  statutory  restric- 
tions should  prove  them.3 

§  348.  If,  however,  the  deed  or  will  is  made  with 
reference  to  slaves  within  another  jurisdiction,  or  is 
made  with  a  view  to  evade  the  laws  prohibiting 
manumission  in  another  State,  the  Courts  of  that 
State  will  not  regard  the  lex  loci,  but  will  enforce 
their  own  statutes.4  So,  also,  if  slaves  are  sent  out 
of  the  State  and  emancipated,  with  a  view  to  return 

'  Sidney  v.  White,  12  Ala.  N.  S.  728;  Nancy  v.  Snell,  6  Dana, 
148,  151 ;  Reuben  v.  Parrish,  6  Humph.  122  ;  Sam  v.  Fore,  12 
S.  &  M.  413  ;  Sidney  v.  White,  12  Ala.  728. 

2  Sain  v.  Fore,  12  S.  &  M.  413;  Sidney  v.  White,  12  Ala.  728; 
Remick  v.  Chloe,  7  Miss.  197. 

8  These  remarks  do  not  apply  to  the  case  in  12  Ala.  There  the 
applicant  set  up  that  the  law  of  Tennessee,  in  construing  certain 
deeds  differing  from  the  general  current  of  decisions,  he  was  rightly 
required  to  prove  it. 

4  Lewis  v.  Fullerton,  1  Rand.  15 ;  Mahomer  v.  Hooe,  9  S.  &  M. 
247. 


294  LAW  OF   NEGKO    SLAVERY. 

after  emancipation,  being  a  fraud  on  the  law,  the 
manumission  is  void.1 

§  349.  Although  a  deed  of  manumission  is  not 
good  against  the  claim  of  creditors,  if  the  grantor  is 
insolvent,  yet  it  is  good  until  set  aside  in  the  proper 
court.  Hence,  the  executor  of  the  grantor  cannot 
treat  such  manumitted  slave  as  assets,  but  must  re- 
sort to  his  legal  remedy  to  vacate  the  deed.2  A 
court  of  equity  has  jurisdiction  for  this  purpose,  and 
may  frame  a  decree  so  as  to  sell  the  negro  only  for 
a  term  of  years,  if  thereby  the  creditors  will  be  paid.3 
Issue  born  after  the  deed,  and  before  its  vacation, 
are  free.4  If  the  deed  is  made  by  the  insolvent, 
with  a  view  to  defeat  creditors,  it  is  still  good 
against  him.5 

§  350.  If  a  deed  of  manumission  be  of  doubtful 
construction,  the  usual  rules  of  interpretation  should 
be  applied;  and,  among  others,  that  it  is  to  be  taken 
most  strongly  against  the  grantor.6  If  it  be  lost, 
secondary  evidence  of  its  contents  may  be  admitted. 
But  if  lost  before  registry,  parol  evidence  of  its  con- 
tents will  not  authorize  a  record.7 

1  Green  v.  Lane,  8  Ired.  Eq.  70.     Held  otherwise  in  Blackniore 
v.  Phill,  7  Yerg.  452. 

2  Allen  v.  Sharp,  7  Gill.  &  J.  96;  Snead  v.  David,  9  Dana,  350; 
Thomas  v.  Wood,  1  Md.  Ch.  Dec.  296.  3  Ibid. 

4  Parks  v.  Hewlett,  9  Leigh,  511  j  23  Ala.  143. 

5  So  was  the  civil  law.     Cod.  vii,  8,  5. 

6  Isaac  v.  West,  6  Rand.  652.     The  civil  law  rule  was,  that  in 
case  of  doubt  the  construction  should  be  in  favor  of  liberty.     "  In 
obscura    voluntate  naanumittentis   favendum  est  libertati."      See 
Dig.   xxxv,  2,  32.     Pothier  lays    down  the  same  rule,  in  notes 
to  tit.  De  Regulis  Juris. 

7  Mimey  v.  Cartricht,  3  A.  K.  Marsh.  493. 


MANUMISSION.  295 

§  351.  Sometimes  the  courts  presume  a  deed  of 
manumission  when  the  owner  permits  the  slave,  for 
a  number  of  years,  to  do  acts  inconsistent  with  a 
state  of  slavery.  It  is  a  question  generally  sub- 
mitted to  the  jury,  but  upon  which  the  courts,  in 
different  States,  vary  in  their  rulings.1  This  pre- 
sumption may,  of  course,  be  rebutted  by  proof  of 
acts  inconsistent  with  freedom.8 

§  352.  If  the  record  shows  that  the  Court  has 
acted  on  a  case  not  authorized  by  the  statute,  the 
judgment  is  of  no  effect.  As  in  North  Carolina,  the 
petition  was  to  emancipate  the  slave  "when  the 
owner  thinks  proper ;"  and  the  decree  granted  per- 
mission "on  the  owner's  complying  with  the  sta- 
tutes;" it  was  held,  that  the  proceeding  was  invalid.3 

1  Burke  v.  Joe,  6  Gill  &  John.  136 ;  Wells  v.  Lane,  9  John. 
144;  Miller  v.  Reigne,  2  Hill  S.  C.  592;  State  v.  McDonald,  Coxe, 
332;  Wilson  v.  Barnett,  8  Gill.  &  J.  159;  State  v.  Hill,  2  Speers, 
150;  Stringer  v.  Burcham,  12  Ired.  41;  Anderson  v.  Garrett,  9 
Gill.  120 ;  Henderson  v.  Jason,  9  Gill.  483. 

2  Sampson  v.  Burguin,  3  Dev.  &  Bat.  28. 

3  Bryan  v.  Wadsworth,  I  Dev.  &  Bat.  384. 


CHAPTER  XX. 

OF  MANUMISSION  BY  WILL   OR   EXECUTOR'S  CONTRACTS. 

§  353.  WHAT  has  been  said  in  reference  to  manu- 
mission by  deed,  applies  with  equal  force  to  manu- 
mission by  will,  except  in  those  States  where  such 
manumission  is  prohibited.  The  number  of  slaves 
thus  set  free  has  caused,  in  some  of  the  States,  a 
prohibition  of  manumission  by  will.1  In  the  ab- 
sence of  that,  a  testator  may  order  his  executor  to 
do  that  which  he  himself  could  have  done  while  in 
life.  There  are  other  questions,  however,  which 
arise  peculiarly  on  manumission  by  will,  to  which 
we  will  now  attend. 

§  354.  The  will  must  be  executed  with  the  same 
formalities  as  is  necessary  to  pass  title  to  slaves  to 
other  legatees;2  and  if  not  executed  in  that  manner, 
it  cannot  be  aided  or  made  effectual  by  a  mere  refer- 
ence to  it  in  some  other  conveyance.3  So,  also,  a 
nuncupative  will  cannot  effect  emancipation  where 

4  Mississippi,  9  S.  &  M.  247 ;  Alabama,  14  Ala.  76.  In  Mary- 
land, deeds  of  manumission  made  during  the  last  illness,  are  void. 
2  Har.  &  McH.  198. 

2  Mullins  v.  Wall,  8  B.  Monr.  445.     This  was  a  case  of  the  frau- 
dulent destruction  of  the  will  by  the  heirs. 

3  Henry  v.  Nunn,  11  B.  Monr.  239. 


MANUMISSION   BY  WILL.  297 

it  is  insufficient  to  pass  a  bequest  of  slaves.1  The 
assent  of  the  executor  is  as  necessary  to  a  manu- 
mitting clause  as  to  any  other  legacy,  but  this  assent 
may  be  presumed  from  his  acts.3 

§  355.  A  will  having  no  effect  until  the  death  of 
testator,  a  sale  or  gift  of  the  negro,  to  whom  freedom 
was  bequeathed  by  the  testator  in  his  lifetime,  is 
pro  tanto  a  revocation  of  the  will.3  But  it  takes 
effect  immediately  after  death,  and  hence,  a  child 
born  after  the  death  of  testator  and  before  probate 
of  the  will,  of  a  slave  manumitted  by  the  will,  is 
free.4  And  this  is  true,  even  if  the  manumission  is 
conditional  upon  the  slave's  electing  to  go  to  Li- 
beria.5 

The  mere  expression  of  a  desire,  in  a  will,  that  a 
slave  shall  be  free,  does  not  amount  to  a  manumis- 
sion, if,  from  other  provisions,  it  appears  that  the 
intention  of  testator  was  not  to  part  with  the  do- 
minion over  such  slave.6  Nor  would  a  bequest  of 
freedom,  if  the  executor  or  heir  shall  be  willing,  ac- 
cording to  the  civil  law,  amount  to  manumission.7 

§  356.  In  construing  a  bequest  of  freedom,  some 
of  the  courts  have  announced  that  the  law  favors 
liberty,  and  hence,  the  courts  will  incline  in  favor 

1  Cooke  v.  Cooke,  3  Litt.  238 ;  aliter,  where  it  would  pass  a 
bequest  of  slaves,  even  though  the  statute  requires  manumission 
to  be  done  by  writing.     Phoebe  v.  Boggers,  1  Grat.  129. 

2  Nicholas  v.  Burruss,  4  Leigh,  289;  Nancy  v.  Snell,  6  Dana, 
148. 

8  Matter  of  Nan  Mitchell,  14  John.  324 ;  Stewart  v.  Williams, 
3  Md.  425.  «  Black  v.  Meaux,  4  Dana,  188. 

5  Graham  v.  Sam,  7  B.  Monr.  403. 

6  Rucker  v.  Gilbert,  3  Leigh,  8;  Taylor  v.  The  American  Bible 
Soc.  7  Ired.  Eq.  201.  7  Dig.  Lib.  xxx,  1,  75. 


298  LAW   OF   NEGRO    SLAVERY. 

of  manumission,1  while  others  have  announced  that 
the  increase  of  a  free  colored  population  is  against 
the  policy  of  a  slaveholding  State,  and  hence  the 
courts  will  incline  against  manumission.2  The  true 
principle  of  hermeneutics  is,  that  the  Court  should 
incline  neither  the  one  way  or  the  other,  but  should 
inquire,  first,  what  is  the  intention  of  testator?  and, 
second,  has  he  used  sufficient  words  to  carry  out  his 
intention  ?3  If,  in  either  of  these  particulars,  the 
bequest  is  insufficient,  it  must  fail,  unless  in  the 
latter  case  the  facts  make  out  such  a  case  as,  under 
the  general  rules  of  law,  will  authorize  the  Court  to 
supply  words,  in  which  event,  such  words  will  be 
supplied.4 

§  357.  We  have  seen  heretofore  that  manumis- 
sion cannot  be  effected  to  the  prejudice  of  credi- 
tors. If  the  estate,  therefore,  is  insolvent,  the  be- 
quest fails,5  nor  can  the  executor,  by  assenting  to 
the  legacy  before  the  solvency  of  the  estate  is  ascer- 
tained, deprive  the  creditors  of  their  right  to  look 
to  the  slaves  as  assets.6  If  there  be  a  sufficiency  of 
assets,  and  the  executor  still  refuses  to  assent,  the 
slaves  cannot  commence  their  petition  for  freedom, 

1  Nancy  v.  Snell,  6  Dana,  149;  7  Serg.  &  R.  378;  Cuffy  v.  Cas- 
tillon,  5  Mart.  494.     Such  was  the  rule  of  the  civil  law.     "Quoties 
dubia  libertatis  interpretatio  est."     Dig.  Lib.  1,  17,  20. 

2  Charlotte  v.  Chouteau,  11  Miss.  193. 

8  See  Monica  v.  Mitchell,  1  Md.  Ch.  Dec.  355  j  Robinson  v. 
King,  6  Ga.  539 ;  Lanham  v.  Meacham,  4  Strobh.  Eq.  203 ;  Cle- 
land  v.  Waters,  16  Ga.  491. 

<  Cleland  v.  Waters,  16  Ga.  Rep.  496. 

5  Cornish  v.  Wilson,  6  Gill.  299. 

6  6  Gill.  299 ;  Fenwick  v.  Chapman,  9  Peters,  461.     It  is  good 
against  him.    Nancy  v.  Snell,  6  Dana,  155 ;  9  Peters,  461. 


MANUMISSION   BY  WILL.  299 

and  rely  upon  these  facts  to  show  their  right  to 
their  liberty,  but  must  institute  another  proceeding, 
usually  in  Chancery,  to  compel  the  executor  to  as- 
sent,1 in  which  case,  the  Court  does  not  decree  the 
liberty  of  the  slaves,  nor  that  the  executor  make 
deeds  of  manumission,  but  that  he  assent  to  the 
legacy.2  If  the  executor  is  an  improper  person  to 
administer  the  assets,  so  as  to  secure  the  solvency  of 
the  estate,  some  of  the  courts  have  placed  the  assets 
in  the  hands  of  a  commissioner  for  this  purpose.8 
If  the  executor  should  wrongfully  sell  a  slave  thus 
manumitted,  where  there  is  a  sufficiency  of  assets  to 
pay  the  debts,  the  sale  would  not  be  good,  even  to 
an  innocent  purchaser,  against  the  claim  of  the 
negro  to  freedom.  In  facf,  the  will  being  of  record, 
is  notice  to  the  purchaser.4 

§  358.  Is  real  estate  assets  for  the  payment  of 
debts,  so  as  to  secure  the  bequest  of  manumission  ? 
In  those  States  where  real  estate  is  made  assets  on 
the  same  footing  with  personalty,  for  the  payment 
of  debts,  it  should  be  exhausted  before  the  manu- 
mitting clause  should  fail  entirely.5  If,  however, 
slaves  are  held  as  personalty,  and  the  law  of  the 
State  requires  that  species  of  property  to  be  ex- 
hausted before  the  realty  should  be  looked  to  as 
assets,  upon  principle,  the  right  of  the  heir  is 

1  Cornish  v.  Wilson,  6  Gill.  299 ;  Peters  v.  Van  Lear,  4  Gill. 
249. 

8  6  Gill.  299 ;  see  also  Anderson  v.  Garrett,  9  Gill.  120. 
8  Graham  v.  Sam,  7  B.  Mo'nr.  403. 

*  Nancy  v.  Snell,  6  Dana,  149, 151;  Patty  v.  Colin  et  al.  1  Hen. 
&  Munf.  525;  Bpyce  v.  Nancy,  4  Dana,  238. 

*  Thomas  v.  Wood,  1  Md.  Ch.  Dec.  296. 


300  LAW  OF   NEGRO   SLAVERY. 

superior  to  that  of  the  manumitted  slave.  The  tes- 
tator may,  by  his  will,  charge  his  debts  upon  the 
realty  in  order  to  secure  freedom  to  his  slave,  in 
which  event,  of  course,  his  will  should  be  executed.1 
By  the  civil  law,  if  a  testator  bequeathed  freedom 
to  a  slave,  supposing  himself  to  be  the  owner,  when 
in  reality  he  was  not,  the  heir  was  bound  to  purchase 
him  at  a  reasonable  price,  to  effectuate  this  pur- 
pose.3 

§  359.  There  may  be  a  sufficiency  of  assets  at  the 
death  of  testator,  and  subsequent  thereto  these  may, 
without  fault  of  the  executor,  prove  insufficient,  in 
which  event  the  bequest  of  freedom  must  fail.3 
And,  e  converse,  if  the  assets  were  originally  insuffi- 
cient, and  subsequently  became  sufficient,  the  be- 
quest is  good.4  If  the  insufficiency  does  not  amount 
to  the  value  of  the  manumitted  slaves,  a  Court  of 
Chancery  may  order  their  sale  only  for  a  term  of 
years,  until  the  proceeds  shall  satisfy  the  debts.5  If 
there  is  a  sufficiency  of  assets,  and  the  executor  as- 
sents to  the  manumission,  a  sale  of  the  manumitted 
slave  under  a  fi.  fa.  against  the  executor  would  be 
void  and  convey  no  title.6 

§  360.  Before  the  bequest  is  declared  invalid  on 

1  When  the  intention  to  manumit,  at  all  events,  is  manifest,  slight 
words  will  amount  to  a  charge.  The  words  "  after  my  debts  and 
funeral  charges  are  paid,  1  devise  and  bequeath  as  follows,"  held 
sufficient  to  charge  the  debts  on  real  estate,  in  order  to  give  effect  to 
a  manumitting  clause.  Fenwick  v.  Chapman,  9  Peters,  461. 

3  Dig.  xl,  5,  39. 

3  Wilson  v.  Ann  Barnett,  9  Gill.  &  John.  158. 

*  9  Gill.  &  J.  158. 

5  Cornish  v.  Wilson,  6  Gill.  299 ;  Nancy  v.  Snell,  6  Dana,  151. 

6  Rice  v.  Spear,  Harper's  Law  Rep.  20. 


MANUMISSION   BY   WILL.  301 

account  of  the  insufficiency  of  assets  to  pay  debts, 
there  should  be  an  accurate  account  of  all  the  assets 
subject  to  this  purpose  ;  and  where  the  realty  is  so 
subject,  the  heir  at  law  should  be  called  in  to  account 
therefor.1  An  order  passed  by  the  Orphans  Court, 
directing  the  administrator  to  sell  the  slaves,  would 
not  be  conclusive  evidence xrf  the  insufficiency  of  the 


§  361.  If  the  residuum  be  insufficient  to  pay  the 
debts,  and  specific  legacies  must  abate  to  furnish  a 
fund  for  this  purpose,  the  question  may  arise, 
whether  the  bequest  of  freedom  to  a  slave  (being 
estimated  as  of  the  value  of  the  slave)  should  abate 
pro  rata  with  other  legacies  ?  Some  of  the  courts 
seem  to  incline  against  such  abatement,  on  the 
ground  of  the  favored  character  of  the  bequests. 
Upon  principle,  it  should  be  treated  as  other  specific 
legacies,  and  abate  pro  rata  . 

§  362.  In  those  States  where  manumission  by  will 
or  domestic  manumission  is  prohibited,  the  question 
arises,  whether  the  heirs  or  distributees  at  law,  or 
the  residuary  legatee,  is  entitled  to  slaves  to  whom 
a  void  bequest  of  freedom  is  given.  It  has  been 
held  that  they  fall  into  the  residuum.4 

§  363.  It  has  been  suggested  by  the  courts  of  one 
of  the  States,  that  a  slave  is  incapable  of  making  a 
choice ;  and  hence,  a  bequest  providing  for  an  elec- 

'  Allein  v.  Sharp,  7  Gill.  &  J.  96;  Thomas  v.  Wood,  1  Md.  Ch. 
Dec.  296;  George  v.  Corse's  Admr.  2  Har.  &  Gill.  1. 

»  Wilson  v.  Barnett,  8  Gill.  &  J.  160. 

8  Nancy  v.  Snell,  6  Dana,  152,  153. 

4  Roberson  v.  Roberson,  21  Ala.  273 ;  7  Ib.  795 ;  Lanham  v. 
Meacham,  4  Strobh.  Eq.  203. 


302  LAW  OF   NEGRO   SLAVERY. 

tion  by  the  slave,  to  remain  in  bondage  or  be  removed 
to  a  non-slaveholding  State,  would  fail  by  reason  of 
this  incapacity.1  This  suggestion  has  not  been  ap- 
proved by  other  courts,2  and  we  cannot  see  the  force 
of  it.  The  theory  of  a  complete  annihilation  of 
will  in  the  slave,  is  utterly  inconsistent  with  all  recog- 
nition of  him  as  a  person,  especially  as  responsible 
criminally  for  his  acts. 

§  364.  It  sometimes  occurs,  that  a  testator  directs 
his  slaves  to  be  removed  to  another  State  for  the 
purpose  of  manumission,  and  the  execution  of  this 
provision  becomes  impossible,  from  the  refusal  of 
such  State  to  admit  free  negroes  within  its  limits. 
It  has  been  held,  that  in  such  cases  the  bequest 
fails.3  It  may  be  a  question  whether,  in  such  a  case, 
the  primary  intention  of  the  testator  to  emancipate 
his  slaves  may  nqt,  on  the  principle  of  approxima- 
tion or  cy-pres,  be  carried  out,  regardless  of  the 
secondary  intention  as  to  the  particular  manner  of 
effecting  it. 

§  365.  Wherever  the  legislature  directs  the  re- 
moval of  the  slave  after  emancipation,  or  imposes 
any  other  condition  upon  the  execution  of  bequests 
of  manumission,  they  must  be  strictly  complied 
with.*  If,  however,  there  is  unavoidable  delay  in 
removal,  beyond  the  time  specified ;  or  if  there  is  a 
fraudulent  collusion  to  violate  the  law,  in  order  to 

1  Carroll  v.  Bromby,  13  Ala.  102. 

2  Leech  v.  Cooley,  6  S.  &  M.  93;  John  v.  Moreman,  8  B.  Monr. 
100;  10  Ib.  69;  Isaac  v.  McGill,  9  Humph.  616;  Washington  v. 
Blunt,  8  Ired.  Eq.  253. 

3  Nancy  v.  Wright,  9  Humph.  597 ;  Cleland  et  al.  v.  Waters, 
18  Ga.  Rep.  563.  4  Spencer  v.  Dennis,  8  Gill.  314. 


MANUMISSION    BY   WILL.  80S 

• 

deprive  the  slave  of  the  benefit  of  the  bequest,  such 
failure  to  comply  will  not  avoid  the  manumission.1 

§  366.  We  have  seen  heretofore  how  slaves,  inte- 
rested under  a  will,  could  be  heard  in  a  motion  to 
have  the  will  proven,  without  a  violation  of  the 
principle  which  denies,  to  them,  while  slaves,  the 
right  to  sue.2  We  may  add  here,  that  if  a  slave  is 
bequeathed  to  a  legatee  for  the  purpose  of  manu- 
mission, this  is  good  reason  for  a  court  of  equity  to 
decree  a  specific  performance,  if  the  executor,  or 
other  person  having  him  in  possession,  refuses  to 
deliver  him  up.3  In  those  States  where  domestic 
manumission  is  forbidden  and  foreig^Temancipation 
is  allowed,  a  question  may  arise,  how  a  direction  to 
executors  to  remove  slaves  to  a  foreign  State  for 
this  purpose,  can  be  enforced  ?  In  the  absence  of 
statutory  enactment,  both  public  policy  and  the 
principles  of  justice  require,  that  the  courts  should 
devise  some  means  by  which  a  faithless  executor 
should  be  compelled  to  execute  the  trust.  In  similar 
cases,  the  civil  law  gave  the  slave  an  equitable 
action  to  enforce  the  trust.4 

§  367.  A  slave  being  incapable  of  making  a  con- 
tract, and  all  of  his  earnings  belonging  to  his  master, 
it  would  follow  necessarily  that  no  executory  con- 
tract between  the  master  and  the  slave,  looking  to 
future  manumission,  could  be  enforced,  even  where 
the  slave  could  show  a  complete  compliance  on  his 

•  Wade  v.  Am.  Col.  Soc.  7  S.  &  M.  663. 

2  §§  283,  284.     See  also  Bedford  v.  Peggy,  6  Rand.  316;  and 
Manus  v.  Givens,  7  Leigh,  689. 

3  Code,  Lib.  vii,  5,  17. 

4  Dig.  xl,  5,  17  j  Cod.  vii,  16,  25,  and  26. 


304  LAW  OP  NEGRO   SLAVERY. 

part.1  Such  was  the  civil  law.2  Yet,  under  certain 
circumstances,  such  contracts  have  been  enforced 
both  under  that  law  and  in  some  of  the  States.3  If 
the  contract  is  for  immediate  manumission,  and  made 
in  conformity  with  law,  the  master  may  subsequently 
enforce  from  the  manumitted  slave  a  compliance 
with  its  terms.4  Such  was  also  the  civil  law.5 

§  368.  A  very  different  result  follows  a  contract 
made  by  the  master,  with  a  third  person,  for  the 
manumission  of  the  slave.  Such  a  contract,  if  not 
forbidden  by  the  law,  stands  on  the  same  footing 
with  all  other  contracts,  and  can  be  enforced  by  the 
parties  thereto.6  The  slave,  however,  is  not  a  party 
to  the  contract ;  nor  can  he,  like  another  cestui  que 
trust,  apply  for  its  execution  in  his  favor.7  Accord- 

1  Beall  v.  Joseph,  Hardin,  51  j  Cooke  v.   Cooke,  3  Litt.  238; 
Bland  v.  Bowling,  9  Gill.  &  J-  19 ;  Willis  v.  Bruce,  8  B.  Monr. 
548.     In  Louisiana,  these  contracts  are  excepted  from  the  general 
incapacity  of  the  slave  to  contract,  and  if  in  writing,  may  be  enforced 
by  the  slave,  after  a  full  compliance  with  the  terms.     Victoire  v. 
Dussuau,  4  Mart.  212  j  5  Mart.  494. 

2  Dig.  xv,  1,  11  j  Dig.  xl,  1,  4;  Ibid.  1,  19. 

3  Dig.  as  above.     Stiles  v.  Kichardson,  4  Yeates,  82  ;  Kettletas 
v.  Fleet,  7  John.  324 ;  State  v.  Prall,  Coxe,  4  j  Sally  v.  Beaty,  1 
Bay.  260. 

4  Keane  v.  Boycott,  2  H.  Black.  511 ;  Williams  v.  Brown,  3 
Bos    &  Pul.  69 ;  Opinions  of  Heath,  Kooke,  and  Chanibre,  JJ. ; 
Commonwealth  v.  Clements,  Tj  Binney,  206;  Stiles  v.  Kichardson, 
4  Yeates,  82 ;  Kettletas  v.  Fleet,  7  John.  324.     Held  otherwise 
in  Commonwealth  v.  Cook,  1  Watts,  155 ;  and  Commonwealth  v. 
Robinson,  Ib.  158 ;  but  placed  on  a  statute  of  Pennsylvania. 

5  Dig.  iv,  3,  8. 

8  Gatliffe's  Admr.  v.  Rose  et  al.  8  B.  Monr.  633 ;  Thomson  v. 
Wilmot,  1  Bibb,  422  j  Cato  v.  Howard,  2  Har.  &  J.  323. 

7  Gatliffe's  Admr.  v.  Rose  et  al.  8  B.  Monr.  633 ;  Dunlap  v. 
Archer,  7  Dana,  30. 


MANUMISSION   BY  WILL.  305 

ing  to  the  civil  law,  a  slave  sold  with  a  covenant 
that  the  purchaser  should  manumit  him,  became 
free  without  farther  act.1  If  a  future  time  was 
specified,  he  became  free  at  that  time.2 

§  369.  Where  manumission  is  not  required  to  be 
effected  by  written  instrument,  nor  otherwise  re- 
stricted by  statute,  a  contract  by  a  master  with  his 
slave,  for  his  manumission,  might  effect  an  imme- 
diate emancipation  by  implication;  as  the  master 
thereby  recognizes  in  the  slave  the  power  to  con- 
tract,— a  power  belonging  only  to  freemen.3 

'  Dig.  xl,  8,  9.  2  Cod.  iv,  57,  4. 

3  Keane  v.  Boycott,  2  H.  Black.  514,  and  note. 


20 


CHAPTER  XXI. 

OF   INDIRECT   MANUMISSION. 

§  370.  WE  come  now  to  consider  of  indirect  manu- 
mission ;  which  may  be  effected  either  by  the  opera- 
tion of  law,  or  by  implication,  from  the  acts  of  the 
master. 

§  371.  Manumission  by  operation  of  law,  may  be 
either  of  foreign  laws  acting  on  the  slave  when  pro- 
perly subject  to  their  influence ;  or  of  domestic  laws, 
the  violation  of  which  works  the  emancipation  of 
the  slave.  We  have  heretofore  considered,  at  length, 
the  effect  of  foreign  laws  upon  a  slave  voluntarily  or 
by  flight  coming  within  their  jurisdiction ;  and  have 
laid  down  the  rules  which  we  considered  govern 
such  cases.1  We  will  not  repeat  them  here.  We 
may  add,  that  as  the  animus  morandi,  the  change  of 
domicile,  is  essential  in  order  to  work  emancipation, 
such  animus  cannot  be  imputed  to  one  who  is  not 
sui  juris,  and  capable  of  choosing  a  domicile,  such  as 
an  infant  or  one  under  duress.2 

§  372.  So,  also,  one  who  has  only  a  temporary 
interest  in  a  slave,  as  a  hirer  or  even  a  tenant  for 

1  §§  134-239. 

2  Porter  v.  Butler,  3  Har.  &  McHen.  168 ;  David  v.  Porter,  4 
Har.  &  McHen.  418. 


INDIRECT    MANUMISSION.  307 

life,  cannot  destroy  the  interest  of  the  owner,  in  fee 
or  in  remainder,  by  changing  the  domicile  of  the 
slave  to  a  foreign  State.1  One  of  several  joint  owners 
could  destroy  the  entire  interest ;  for,  having  a  right 
to  the  possession  of  the  slave  equally  with  the  others, 
he  can  choose  a  domicile  for  the  slave,  and  his  co- 
tenants  must  look  to  him  for  damages  in  thus  de- 
stroying the  joint  property.  But  a  mortgagor  cannot 
thus  destroy  the  interest  of  the  mortgagee.  The 
slave  can  recover  freedom  only  by  satisfying  the 
mortgage  debt.3 

§  373.  If  manumission  be  once  effected  by  the 
operation  of  foreign  laws,  it  is  as  complete  and  effec- 
tual to  secure  liberty  to  the  slave,  as  manumission 
by  deed ;  and  the  subsequent  return  of  the  negro  to 
the  original  domicile  would  not  restore  to  the  master 
the  dominion  over  him.3  Of  course  it  is  otherwise 
where  the  residence  in  the  foreign  State  is  tempo- 
rary, and  the  status  of  slavery  has  never  been 
changed,  even  though  the  courts  of  such  foreign 
State  refused  to  aid  the  master  in  asserting  his 
dominion  within  their  jurisdiction.4 

§  374.  Many  of  the  slaveholding  States,  conceiv- 
ing it  to  be  their  policy  not  to  admit  a  farther  im- 
migration of  slaves,  except  with  their  masters,  bond 
fide  intending  to  become  citizens,  have  passed  laws 

1  Butler  v.  Delaplaine,  7  Serg.  &  R.  378;  Davis  v.  Tingle,  8  B. 
Monr.  545-6.  2  Milly  v.  Smith,  2  Miss.  171. 

•  Marie  Louise  v.  Mariot  et  al.  8  Louis.  Rep.  475 ;  Mimey  v. 
Whitesides,  1  Miss.  472 ;  Bland  v.  Dowling,  9  Gill.  &  J.  19 ; 
Josephine  v.  Poulteney,  1  La.  An.  Rep.  329. 

*  Case  of  slave  Grace,  2  Hagg.  Ad.  Rep.  94  j  Dred  Scott  case, 
19  How.  1. 


308  LAW  OF  NEGRO   SLAVERY. 

prohibiting  such  immigration,  and  have  annexed 
various  penalties  to  their  violation.  In  some,  one  of 
the  penalties  is  the  manumission  of  the  slave.1  In 
such  States,  slaves  imported  in  violation  of  the  law, 
or  whose  masters  have  failed  to  comply  with  those 
requisites  as  to  registry,  oath,  &c.,  prescribed  by  the 
statutes  to  avoid  evasions,  are  free.2  If,  however, 
this  is  not  a  penalty  prescribed,  the  slave  is  not  free, 
though  imported  in  violation  of  the  law.3 

§  375.  If  an  infant  or  feme  covert  should  fail  to 
comply  with  the  requisites  of  the  statute,  as  to 
registry,  &c.,  the  Courts  will  not  permit  their  failure 
to  work  a  forfeiture  of  their  title  so  long  as  the  dis- 
ability continues.4  It  has  been  held,  also,  that  an 
agent  intrusted  with  the  importation  of  the  slaves, 
might  comply  with  the  formalities  of  the  statute, 
even  to  the  taking  of  the  oath  prescribed.5  Nor 
does  the  statute  apply  to  any  but  voluntary  impor- 
tations ;  and  hence,  one  forced  to  fly  from  St.  Do- 
mingo with  her  slaves,  and  temporarily  residing  in 
Maryland,  was  held  not  to  be  within  the  operation 

1  Laws  of  Maryland,  on  this  subject,  Dorsey's  Laws,  &c.  pp.  334, 
1108,  1112,  2325;  Laws  of  Virginia,  Revised  Code,  749 ;  Laws 
of  South  Carolina,  Stat.  at  Large,  vii,  447. 

2  Henderson  v.  Tom,  4  Har.  &  John.  282;    Scott  v.  Ben,  6 
Cranch,  1 ;  Boisneuf  v.  Lewis,  4  Har.  &  McH.  414 ;  Fulton  v. 
Lewis,  3  Har.  &  J.  564. 

3  Gromez  v.  Bonneval,  6  Mart.  626. 

4  Haney  v.  Waddle,  3  Har.  &  John.  557 ;  Sprigg  v.  Mary,  3 
Har.  &  J.  491. 

5  Montgomery  v.  Fletcher,  6  Rand.  612.      A  wife  may  not. 
McMichen  v.  Amos,  4  Rand.  134. 


INDIRECT   MANUMISSION.  309 

of  the  law.1  So,  if  a  slave  is  brought  into  the  State 
without  the  consent  of  the  true  owner,  he  does  not 
become  free.2 

§  376.  If  a  slave  be  removed  to  another  State, 
and  acquire  a  domicile  there,  the  subsequent  return 
of  such  slave  into  the  State  is  an  importation  within 
the  statute.3  If,  however,  the  master's  residence  in 
such  other  State  was  temporary,  on  his  return  with 
his  slaves  he  need  not  comply  with  the  formalities 
prescribed  by  the  statute.4 

§  377.  Slaves  introduced  into  the  State  for  a  mere 
temporary  purpose,  as  by  a  hirer  for  a  year,  are  not 
imported  in  violation  of  the  law.5  After  long  pos- 
session in  the  State,  the  Court  may  presume  a  com- 
pliance with  the  statutory  regulations.8  Under  cer- 
tain circumstances,  also,  parol  evidence  has  been 
admitted  to  supply  an  omission  in  the  certificate 
given  by  the  collector  of  the  tax  imposed  on  slaves 
imported.7 

§  378.  It  is  almost  unnecessary  to  say,  that  where 
the  statute  requires  the  registry  of  slaves  for  the 

1  Baptist  et  al.  v.  De  Volunbrun,  5  Har.  &  J.  86  ;  Ib.  99,  n. 
Aliter  if  the  residence  be  permanent.     Fulton  v.  Lewis,  3  Har.  & 
John.  564. 

2  Scott  v.  London,  3  Cranch,  324;  Pocock  v.  Hendricks,  8  Gill. 
&  J.  421 ;  see  also  6  Munf.  12 ;  4  Rand.  67. 

8  Wilson  v.  Isbell,  5  Call.  425;  Sprigg  v.  Pressly,  3  Har.  &  J. 
493 ;  Betty  v.  Horton,  5  Leigh,  615. 

*  Murray  v.  McClarty,  2  Munf.  393 ;  Barnett  v.  Sam,  1  Gilmer, 
232;  Adams  v.  Leverton,  2  Har.  &  McH.  382. 

5  Henry  v.  Ball,  1  Wheat.  1. 

6  Mason  v.  Matilda,  12  Wheat.  590 ;  Abraham  v.  Matthews,  6 
Munf.  159. 

7  Harry  v.  Lyles,  4  Har.  &  McHen.  215. 


310  LAW   OF   NEGRO   SLAVERY. 

purpose  of  gradual  abolition,  or  for  any  other  pur- 
pose, and  prescribes  freedom  as  a  penalty  for  a  non- 
compliance,  the  master  failing  to  comply,  forfeits  his 
interest  in  the  slave.1  If  he  registers  by  a  wrong 
name,  it  has  been  held  that  parol  evidence  was  in- 
admissible to  show  the  mistake.2  And  the  registry 
by  one  not  the  owner  or  his  agent,  has  been  held 
insufficient.3 

§  379.  In  some  of  the  States  the  exportation  of 
slaves,  under  certain  circumstances,  is  illegal,  and 
emancipation  is  the  penalty.  A  violation  of  such 
a  statute  gives  immediate  liberty  to  the  slave.4  The 
carrying  of  a  slave  out  of  the  State  on  a  temporary 
travel  or  sojourning,  does  not  come  within  the  inhi- 
bition of  the  law.5 

§  380.  It  remains  for  us  to  consider  of  manumis- 
sion by  implication,  from  the  acts  of  the  master. 
Where  manumission  may  be  effected  by  parol,  and 
no  formalities  are  prescribed  by  the  law,  acts  of  the 
master  recognizing  the  slave  as  a  freeman,  were  held 
by  the  Courts  sufficient  evidence  to  presume  a  pre- 
vious manumission.  When  freedom  was  declared 
upon  such  evidence,  the  manumission  was  implied, 
and  hence  the  title,  "  by  implication."  From  this 
view  of  its  origin,  it  is  evident  that  manumission 
can  never  be  implied  in  any  State  where  public  for- 
malities are  required  to  make  it  effectual. 

§  381.  In  the  civil  law,  and  especially  before  any 

1  Giles  v.  Meeks,  Addis.  384. 

2  Lucy  v.  Pumfrey,  Addis.  380. 

8  Elson  v.  McCullough,  4  Yeates,  115. 

4  Allen  v.  Sarah,  2  Barring.  434  j  3  Ibid.  560. 

5  Cross  v.  Black,  9  Gill.  &  J.  198. 


INDIRECT   MANUMISSION.  311 

restraints  were  placed  on  manumission,  various  acts 
by  the  master  were  considered  sufficient  to  justify 
the  Courts  to  imply  freedom ;  such  as  appointing 
the  slave  guardian  or  tutor  by  will  j1  giving  him  a 
legacy;3  living  in  a  state  of  concubinage  with  a 
female  slave,  and  not  mentioning  her  in  his  will  ;3 
abandoning  him  in  sickness,4  and  all  similar  acts 
showingi  a  withdrawal  of  the  dominion  of  the 
master. 

§  382.  So  it  has  been  held  in  America,  that  the 
bringing  of  an  action  by  the  master  against  the 
slave,5  or  a  devise  of  property,  real  or  personal,  to 
the  slave  by  the  master,6  implied  manumission. 

1  Inst.  i,  14.  2  Ibid,  ii,  14. 

s  Code,  vii,  15,  3.  « Dig.  xl,  8,  2. 

5  Oatfield  v.  Waring,  14  John.  188. 

6  Hall  v.  Mullin,  5  Har.  &  John.  190  j  Guillemette  v.  Harper, 
4  Rich.  186.     Such  implied  manumission  is  expressly  forbidden  by 
the  Civil  Code  of  Louisiana,  Art.  184. 


CHAPTER  XXII. 

OF   THE   EFFECT   OF   MANUMISSION,   AND  HEREIN   OF 
THE   STATUS  OF  FREE   PERSONS  OF   COLOR. 

§  383.  MANUMISSION  once  effected,  removes  forever 
the  dominion  of  the  master,  and  by  no  act  of  his 
can  it  be  restored  ;*  nor  can  even  the  legislative 
power  of  the  State  deprive  the  freedman  of  his 
liberty,  except  for  some  violation  of  the  law.2  By 
the  Roman  law,  the  freedman  became  the  client  of 
the  master,  who,  as  patron,  continued  to  exercise 
considerable  power  over  him.  This,  however,  was 
the  result  of  municipal  law. 

§  384.  To  withdraw  his  dominion,  is  the  privi- 
lege of  the  master.  To  incorporate  a  new  citizen 
into  the  body  politic,  is  only  within  the  power  of 
the  State.  The  freed  negro  does  not  become  a  citi- 
zen by  virtue  of  his  manumission.  It  requires  the 
act  of  another  party,  the  State,  to  clothe  him  with 
civil  and  political  rights.3  Before  such  act  he  stands 

1  The  civil  law  carried  this  principle  so  far  as  to  protect  freedom 
acquired  by  fraud.  Dig.  iv,  3,  24.  See  Article  189,  of  Louisiana 
Civil  Code. 

3 1  am  aware  of  the  decision  in  Blackman  v.  Gordon,  2  Eich. 
Eq.  43 ;  but  I  conceive  the  text  to  be  in  accordance  with  principle. 

3  Crandall  v.  The  State,  10  Conn.  340  ;  Bryan  v.  Walton,  14  Ga. 


EFFECT    OF   MANUMISSION.  313 

in  the  position  of  an  alien  friend,  and  in  the  absence 
of  legislation  he  would  be  entitled  to  all  such  pri- 
vileges as  are  allowed  to  such  residents.1  He  occu- 
pies in  such  a  case  the  position  of  the  freedmen  of 
Rome  (liberti  or  libertini),  before  the  right  of  citizen- 
ship was  conferred  upon  them.2  They  were  capable 
of  all  those  rights  founded  on  the  jus  naturale  and 
jus  gentium,  but  not  political  rights  or  those  apper- 
taining to  citizenship.  They  were  as  to  these  in  the 
same  condition  with  alien  friends  (peregrini)  .8 

§  385.  I  regret,  in  this  opinion,  to  differ  from  the 
conclusions  of  the  Supreme  Court  of  Georgia,  in 
Bryan  v.  Walton,  14  Ga.  185.  I  agree  with  them 
as  to  the  status  of  the  freed  negro  in  Georgia,  but 
that  status,  in  my  opinion,  is  derived  from  the  legis- 
lation of  the  State,  by  which  he  "  can  act  only  by 
and  through  his  guardian,"  and  by  which  "  he  is  in 
a  state  of  perpetual  pupilage  or  wardship." 

§  386.  Free  persons  of  color,  unless  restricted  by 
statute,  may  contract  marriage  with  those  of  their 
own  condition,  or  any  free  person  capable  of  con- 
tracting. Intermarriage  with  the  whites  is  prohi- 
bited in  a  large  majority  of  the  States  of  the  Union. 
They  may  make  contracts,  and  dispose  of  their 


185 ;  1  Meiggs's  Kep.  331  j  N.  Bacon'sBiscourse  on  the  Laws  of 
England,  35;  Decision  of  J.  Daniel,  in  SKt  v.  Sandford,  19  How. 
83.  The  case  of  the  State  v.Mdniundpt  Dev.  340,  seems  to  be 
otherwise.  A  close  examinatron  of  it,  however,  shows  that  it  is 
merely  a  construction  of  a  penal  statute.  The  case  of  The  State 
v.  Manuel,  4  Dev.  &  Bat.  20,  is  placed  on  the  statutes  of  the  State. 

1  See  Fable  yBrown's  Exr.  2  Hill's  Ch.  391. 

2  Inst.  LibXtit.  v,  Art:  3  j  tit.  xvi,  §  4. 

3  KauWn's  Mackeldey,  Div.  II,  ch.  i,  §  119. 

V 


314  LAW  OF   NEGRO   SLAVERY. 

estates  by  will.  In  the  absence  of  a  will,  adminis- 
tration will  be  granted  on  their  estates,  and  unless 
otherwise  directed  by  statute,  they  will  be  subject 
to  the  ordinary  and  general  law  of  distribution.1 

§  387.  Public  policy  has  made  it  necessary  for  the 
slaveholding  States,  by  statute,  to  impose  other  re- 
strictions upon  free  persons  of  color.  They  have 
been  forced  to  extend  over  them  their  patrol  and 
police  regulations,  to  deny  to  them  the  privilege  of 
bearing  arms,  to  require  of  them  the  selection  of  a 
guardian,  who  shall  stand  as  patron,  and  contract 
for  them ;  to  restrain  their  acquisition  of  negro 
slaves  as  property ;  to  place  them  on  the  same  foot- 
ing with  slaves  as  to  their  intercourse  with  white 
citizens ;  such  as  purchasing  spirituous  liquors,  &c.2 
These  various  restrictions,  differing  in  the  different 
States,  place  the  free  negro  but  little  above  the 
slave  as  to  civil  privileges.  Hence,  the  penal  slave 

1  In  Georgia,  their  estates  go  to  their  "descendants,"  which  has 
been  held  not  to  include  collaterals.  Bryan  v.  Walton,  20  Ga.  512  j 
Akin  v.  Anderson,  19  Ga.  229. 

9  Maryland,  see  Dorse/s  Laws,  335,  340,  510,  543,  858,  1071, 
1072. 

Virginia,  Kev.  Code  (1849),  458,  465,  468,  748,  753,  754. 

North  Carolina,  Kev.  Statutes  (1837),  588,  590,  591." 

South  Carolina,  Stat.  at  Large,  vii,  462  et  seq.  474. 

Georgia,  Cohb's  New  Dig.  (1851)  991-997,  1008,  1010,  1017. 

Alabama,  Code  of  1852,  §§  1033,  1034  et  seq. 

Mississippi,  Hutchinson's  Code,*524,  525,  540. 

Arkansas,  Dig.  of  1848,  p.  546  et  seq. 

Missouri,  Dig.  of  Statutes  (1845),  ch.  123. 

Tennessee,  Caruthers  &  Nich.  Dig.  330,  354,  355. 

Texas,  Hartley's  Dig.  §  2539  et  seq. 

Delaware,  Rev.  Code  (1852),  pp.  144,  145,  146. 


EFFECT   OF   MANUMISSION.  315 

code  usually  embraces  the  free  negro.  They  occupy, 
therefore,  a  position  very  similar  to  that  of  the  class 
of  freedmen  in  Rome  known  as  dedititii,  whose  con- 
dition was  but  slightly  removed  from  that  of  the 
slave.1 

§  388.  The  free  negro,  in  the  non-slaveholding 
States,  occupies  the  position  we  have  assigned  him, 
without  the  restrictions  just  named,  viz.,  that  of 
alien  friends,  until  the  State  grants  him  the  rights 
of  citizenship.  We  have  seen,  heretofore,  his  status 
in  the  several  States  of  the  Union.2  But  when  a 
State,  by  virtue  of  its  sovereignty,  grants  to  the  free 
negro  the  rights  of  citizenship,  an  interesting  ques- 
tion arises,  under  the  peculiar  form  of  our  govern- 
ment, whether  he  is  thereby  incorporated  as  a  citizen 
of  the  United  States,  and  entitled  to  those  privileges 
belonging  exclusively  to  citizens. 

§  389.  The  universal  principle  is,  that  it  is  the 
privilege  of  every  government  to  confer  citizenship, 
and  that  none  have  it  except  those  upon  whom  the 
privilege  has  been  conferred.  Previous  to  the  adop- 
tion of  the  Constitution,  every  State  had  the  power 
to  adopt  persons,  within  its  community,  as  citizens ; 
and  all  the  whites  who  had  been  so  adopted  prior  to 
that,  were  recognized  as  citizens  under  the  General 
Government.  The  Constitution  evidently  intended 
to  give  that  power,  in  future,  to  the  General  Govern- 
ment, for  to  it  is  given  the  express  power  to  enact 

1  Inst.  Lib.  I,  tit.  v,  §  3  j  Kaufman's  Mackeldey,  vol.  i,  p.  130 ; 
Bryan  v.  Walton,  14  Ga.  204. 

2  Preliminary  Historical  Sketch,  ch.  XT. 


316  LAW  OP  NEGRO   SLAVERY. 

naturalization  laws.  That  the  laws  enacted  in  pur- 
suance of  that  power,  necessarily  exclude  the  intro- 
duction of  negroes  into  the  body  politic,  is  evident, 
from  the  fact  that  they  expressly  confine  their  ope- 
ration to  white  persons.  Can  a  State,  since  the 
organization  of  the  Federal  Government,  confer 
citizenship  in  that  government  ?  The  very  question 
answers  itself,  unless  power  is  expressly  given  by 
the  Constitution  for  that  purpose.  The  State  can 
confer  citizenship  within  itself;  and  all  privileges 
given  by  the  Constitution  to  citizens  of  a  State,  as 
such,  can  be  claimed  by  the  negro  citizen.  But 
those  privileges  given  to  citizens  of  the  United  States, 
as  such,  can  be  exercised  and  enjoyed  only  by  those 
who  have  been  regularly  admitted  into  this  body 
politic.  Under  these  views,  it  has  been  decided  that 
a  negro  citizen  cannot  sue  in  the  Federal  Courts, 
that  privilege  being  confined  to  citizens  of  the  United 
States,  and  foreign  States  under  certain  circum- 
stances.1 

§  390.  Negroes  in  the  condition  of  statuliberi,  to  be 
free  at  a  future  day,  are  protected  by  the  statutes  of 
several  of  the  States,  and  should  be  by  all,  from 
being  removed  or  fraudulently  sold,  so  as  to  defeat 
the  future  freedom.3  The  introduction  of  such 
negroes  is  prohibited  in  other  States,  under  severe 
penalties.3 

§  391.  In  all  the  slaveholding  States,  and  in  many 


1  Scott  v.  Sandford,  19  Howard,  S.  C.  1. 

2  Maryland,  Dorsey's  Laws,  658,  660,  661 ;  Civil  Code  of  Louis- 
iana, Art.  194. 

3  North  Carolina,  Kev.  Stat.  (1837),  575. 


EFFECT   OF   MANUMISSION.  317 

of  the  non-slaveholding  States,  the  admixture  of 
negro  blood  is  a  disqualification  for  citizenship.  The 
quantum  varies  in  the  different  States.  In  many  of 
them,  the  mode  of  trial  of  the  question  of  citizen- 
ship is  prescribed  by  statute. 

Having  concluded  our  view  of  the  negro  slave  as 
a  person,  we  shall  hereafter  consider  of  those  rules 
of  law  to  which  as  property  he  is  subject.  In  that 
investigation  we  shall  find  that  his  nature  as  a  man, 
and  his  consequent  power  of  volition  and  locomo- 
tion, introduce  important  variations  in  those  rules 
which  regulate  property  in  general. 


NOTE. — This  branch  of  the  subject  will  be  considered  in  another 
volume. 


INDEX. 


HISTOEICAL  SKETCH  OF  SLAVERY. 

ABOLITION  OF  SLAVERY, 
by  East  India  Company,  55. 
first  agitated  in  the  United  States,  169. 
effects  of  American  Revolution  on,  169. 
in  Vermont,  171. 
in  Massachusetts,  171. 
in  New  Hampshire,  171. 
in  Rhode  Island,  171. 
in  Connecticut,  171. 
in  Pennsylvania,  171. 
in  New  York,  172. 
in  New  Jersey,  172. 
in  Hayti,  179. 

society  for,  formed  in  Great  Britain,  188. 
Act  providing  for,  passes  Parliament,  189. 
in  St.  Bartholomew,  192. 
by  Denmark,  192. 
agitation  of,  in  France,  192. 
by  French  Republic,  195. 
effects  of,  in  West  Indies,  196. 
a  failure  in  the  British  West  Indies,  197. 
effects  of,  in  Guiana,  200. 
effects  of,  in  Southern  Africa,  200. 
effects  of,  in  Mauritius,  200. 
effects  of,  in  Danish  colonies,  200. 
effects  of,  on  negroes  in  the  United  States,  201. 
effects  of;  in  New  Grenada,  207. 
first  society  for,  formed  in  the  United  States,  209. 


320  INDEX. 

ABOLITION  OF  SLAVE-TRADE. 

by  the  United  States,  163. 

by  Great  Britain,  165. 

by  France  and  other  countries,  165. 
AFRICA. 

number  of  negroes  exported  from,  154. 

effects  of  abolition  in  Southern,  200. 
AFRICANS. 

as  servants.    See  NEGROES. 
AFRICAN. 

Royal  Company,  143. 
AMERICA. 

effects  of  discovery  of,  on  slave-trade,  135. 

negroes  introduced  into,  138. 
AMERICAN  REVOLUTION. 

effect  of,  on  slavery,  169. 
AMIENS. 

peace  of,  signed,  183. 
ANNE,  QUEEN. 

engages  in  slave-trade,  144. 
APPRENTICE  SYSTEM. 

in  West  Indies,  189. 

recommended  by  French  Commission,  193. 
ARABS. 

slave-trade  carried  on  by,  58. 
ARISTOTLE. 

thinks  slavery  essential  in  a  republic,  59. 
.  treatment  of  slaves,  98. 
ASSYRIA. 

slavery  in,  56. 

eunuchs  in,  56. 

caste  in,  56. 

sources  of  slavery  in,  56. 
AZURARA,  FATHER. 

describes  condition  of  captive  slaves,  135. 

BAGAUDAN. 

conspiracy,  114. 
BAPTIST. 

missionaries,  charged  with  inciting  riot,  189. 
BIASSON. 

commands  the  negroes,  178. 
BLANCHELAND. 

governor,  joins  mulattoes,  177. 


HISTORICAL   SKETCH   OF   SLAVERY.  321 

BOAKMANN. 

death  of,  176. 
BOND  SERVANTS. 

among  the  Jews,  40. 

perpetual  service  of,  40. 

rigorous  treatment  of,  41. 

status  of,  41. 
BORGHELLA. 

succeeds  Rigaud,  187. 
BOURBONS. 

restored,  187. 
BOYEB. 

North  of  Hayti,  surrendered  to,  186. 

causes  Richard  to  be  shot,  187. 

becomes  master  of  Hayti,  187. 

accepts  terms  of  Charles  X,  187. 
BRAHMINS. 

in  India,  50. 
BRAZIL. 

treaty  with,  to  cease  slave-trade,  146. 

slavery  in,  206. 
BRITISH. 

rule  in  India,  53. 

slavery  under,  law  in  India,  53. 

contests  of,  in  Hayti,  179. 
BRITONS. 

freedom  of,  122. 

sold  as  slaves,  122. 
BROGLIE. 

Due  de,  reports  to,  192. 
BUXTON. 

Mr.,  urges  abolition  in  Parliament,  188. 

CASTE. 

in  Egypt,  47. 

effects  of,  48. 

in  India,  50. 

in  Assyria,  56. 
CATO. 

on  treatment  of  slaves,  98. 
CHARLES  V. 

licenses  importation  of  negroes,  139. 
CHARLES  I. 

grants  charters  for  carrying  on  slave-trade,  143. 
21 


322  INDEX. 

CHARLES  X. 

sends  fleet  to  Hayti,  187. 
CHILI. 

slavery  in,  207. 
CHINA. 

slavery  in,  57. 
sources  of  slavery,  58. 
treatment  of  slaves,  58. 
CHRISTIANITY. 

effects  of,  upon  slavery  among  the  Romans,*%. 
in  the  German  States,  106. 
teachings  of,  on  slavery,  107. 
effects  in  Great  Britain,  127. 
CHRISTIAN  NATIONS. 

efforts  of,  to  abolish  slave-trade,  162. 
CHRISTOPHE. 

burns  the  Cape,  183. 
nominated  President  of  Hayti,  186. 
is  deposed,  186. 
is  declared  king,  186. 
suicide  of,  186. 
CICERO. 

justifies  cruel  treatment  of  slaves,  98. 
CIRCASSIAN  SLAVES, 
in  Egypt,  4ft. 
in  Turkey,  118. 
CLARKSON. 

labors  for  the  abolition  of  slave-trade,  164. 
of  slavery,  188. 
COLONIZATION.  ' 
African,  222. 
in  Sierra  Leone,  222. 
in  Liberia,  222. 
American,  Society,  223. 
still  an  experiment,  227. 
COLUMBIA,  DISTRICT  OP. 

abolition  of  slave-trade  in,  210. 
COLUMBUS. 

sends  home  Indians  as  slaves,  137. 
COMMISSION. 

to  inquire  into  condition  of  French  colonies,  192. 
CONCUBINES. 

Hebrew  women  as,  39. 

female  slaves  as,  in  Greece,  62. 


HISTORICAL   SKETCH   OF    SLAVERY.  323 

CONGRESS. 

slavery  conflicts  in,  210. 

at  Vienna,  denounces  slave-trade,  165. 
CONGRESS,  CONTINENTAL. 

resolves  that  no  slaves  be  imported,  153. 

prohibits  the  importation  of  slaves,  163. 
CONSTANTINE. 

makes  exposure  of  children  penal,  75. 

laws  of,  on  slavery,  97. 
CONNECTICUT? 

slavery  in,  148. 
CONSULAR  GOVERNMENT. 

confirms  Toussaint  in  his  powers,  182. 
COOLIES. 

introduced  into  British  West  Indies,  199. 

into  Mauritius,  200. 
COURT. 

Supreme,  of  United  States,  decisions  of,  on  slavery,  211. 

DE  BRESA. 

licensed  to  import  negroes,  139. 
DELAWARE. 

slavery  in,  150. 
DEMOSII,  66. 
DENMARK. 

ameliorates  the  condition  of  the  slave,  191. 

abolishes  slavery,  192. 

effects  of  abolition  on  colonies  of,  200. 
DESSALINES. 

revolt  of,  184. 

overcomes  Rochambeau,  185. 

becomes  Governor-General  of  Hayti,  185. 

orders  massacre  of  whites,  185. 

becomes  Emperor,  186. 

is  assassinated,  186. 
DIOCLETIAN. 

denies  the  power  of  sale  of  children,  75. 
DIODORUS. 

mentions  abolition  of  slavery  for  debt  in  Egypt,  45. 
DUTCH. 

engage  in  slave-trade,  146. 

EAST. 

slavery  in,  unchanged  by  Greek,  Roman,  or  Mohammedan  oc- 
cupation, 58. 


324  INDEX. 

EAST  INDIA  COMPANY. 

obtains  possession  of  India,  53. 

abolishes  slavery,  55. 
EGYPT. 

slavery  in,  44. 

sources  of  slavery  in,  45. 

public  slaves  in,  45. 

rigorous  treatment  of  slaves  in,  46. 

caste  in,  47. 

Circassian  slaves  in,  49. 
ELIZABETH,  QUEEN. 

engaged  in  slave-trade,  143. 
EMANCIPATION. 

under  Mohammedan  law,  53. 

of  Helots,  64. 

begins  in  Hayti,  179. 

in  British  West  Indies,  189. 

in  New  Grenada,  207. 

attempts  to  effect,  in  Virginia,  Kentucky,  and  Missouri,  209. 
ENFRANCHISEMENT. 

modes  of,  in  India,  52. 

of  serfs,  in  France,  115. 
ENGLAND. 

negroes  brought  to,  142. 
ENGLISH  COLONISTS. 

treatment  of  slaves  by,  159. 
EUNUCHS. 

in  Egypt,  46. 

among  the  Jews,  46. 

in  India,  55. 

in  Assyria,  56. 

the  Medes  and  Persians,  56. 

in  Greece,  67. 
EUROPE. 

slavery  in,  during  the  Middle  Ages,  99. 

sources  of  slavery  in,  100. 

early  existence  of  slavery  in,  100. 

different  names  for  slaves  in,  101. 

FEASTS. 

observance  of,  by  slaves,  among  the  Jews,  43. 

the  Medes  and  Persians,  57. 

in  Greece,  70. 

the  Romans,  89. 

by  freedmen,  in  Great  Britain,  124. 


HISTORICAL   SKETCH   OF   SLAVERY.  325 

FERRAND,  GENERAL. 

garrison  under,  185. 
FEUDAL  SYSTEM. 

leads  to  the  emancipation  of  serfs,  47. 
FOOTE. 

speaks  of  Liberians,  227. 
FRANCE. 

slavery  in,  110. 

condition  of  slaves  iij,  111. 

two  classes  only,  112. 

the  serf  in,  112. 

cruel  treatment  of  serfs,  112. 

mainmorte,  113. 

children  of  serfs,  113. 

tormenting  slaves,  114. 

prelibation,  114. 

Saracen  slaves,  115. 

enfranchisement  of  serfs,  115. 

feudal  system  continued  in,  116. 

engages  in  slave-trade,  144. 

abolition  of  slave-trade,  166. 

agitation  of  abolition,  192. 

efforts  to  improve  the  condition  of  slaves,  194. 

Republic  of,  abolishes  slavery,  195. 
FRANCOIS,  JEAN,  178. 
FRANKLIN. 

president  of  first  Abolition  Society,  in  Pennsylvania,  170. 
FRENCH  COLONIES. 

condition  of,  193. 

GAUL. 

burning  slaves  in,  102. 

feudal  system  in,  110. 
GENOESE. 

engage  in  slave-trade,  139. 
GEORGIA. 

slavery  prohibited,  150. 

prohibition  withdrawn,  152. 

prohibits  slave-trade,  153. 
GERMAN  STATES. 

slavery  in,  101. 

early  slavery  mild,  101. 

increases  in  severity,  102. 

sources  of  slavery,  103. 


326  INDEX. 

GERMAN  STATES,  Continued.'. 

punishment  of  slaves,  103.  .^9-- 

iugitives,  104. 

ameliorated  condition  of  slaves,  105. 

villanage,  110. 
GRACE,  SLAVE. 

case  of,  160. 
GREAT  BRITAIN. 

slavery  in,  122. 

under  the  Romans,  122. 

the  Saxons,  123. 

the  Normans,  127. 

condition  of  villains,  128. 

manumission  of  villains,  129. 

extinction  of  villanage,  129. 

present  condition  of  laboring  classes,  131. 

negro  slaves,  146. 

prohibits  the  slave-trade,  165. 
GREECE. 

slavery  in,  59. 

early  existence  of  slavery,  59. 

earliest  inhabitants,  60. 

sources  of  slavery,  61. 

children  of  female  slaves,  62. 

agrestic  and  domestic  slaves,  63. 

domestic  slaves,  66. 

white  slaves,  67. 

fugitives,  68. 

female  slaves,  68. 

number  and  condition  of  slaves,  68. 

slaves  not  considered  persons,  71. 

could  not  appear  as  suitors  in  the  courts,  72. 

labor  performed  by,  72. 

punishment  of  slaves,  73. 
GUIANA. 

effects  of  abolition  in,  200. 

HABERSHAM. 

advocates  the  introduction  of  slaves,  152. 
HAM. 

curse  of,  35. 
HAWKINS,  SIR  JOHN. 

first  English  commander  of  slave-ship,  142. 


HISTORICAL   SKETCH   OF   SLAVERY.  327 

HAYTI. 

three  classes  of  inhabitants,  174. 

three  parties,  175. 

dissensions  among  the  whites,  175. 

insurrection  of  slaves,  176. 

contests  between  mulattoes  and  whites,  176. 

hostilities,  177. 

Toussaint  becomes  prominent,  180. 

becomes  master,  182. 

becomes  governor  for  life,  183. 

hostilities  recommence,  184. 

is  declared  independent,  185. 

efforts  of  Prance  to  regain,  187. 

independence  acknowledged,  187. 

effects  of  abolition,  196. 
HEBREW  SERVANTS. 

term  of  service  of,  38. 

could  become  bond  servants,  38. 

status  of,  39. 

law  of  release  disregarded,  41. 
HEDONVILLE,  GENERAL. 

sent  to  Hayti,  182. 
HELLENES. 

slavery  among  the,  60. 
HELOTS,  64. 

treatment  of,  65. 
HENRY  I. 

king  of  Hayti,  186. 
HENRY,  PATRICK. 

opposed  to  slavery,  170. 
HERODOTUS. 

mentions  negro  slavery  in  Egypt,  44. 

eunuchs  in  Persia,  57. 
HINDOO  LAW  OF  SLAVERY,  51. 
HISPANIOLA. 

decrease  of  negro  population,  139. 

revolt  of  negroes  in,  141. 
HOMER. 

mentions  slavery,  59. 

INDIA. 

slavery  in,  50. 

caste,  50. 

sources  of  slavery,  51. 


328  INDEX. 

INDIA,  Continued. 

master's  power  over  slaves,  52. 

under  Mohammedan  law,  53. 

under  British  rule,  53. 

British  law  making  slaves,  53. 

servile  class,  54. 

negroes,  54. 

slave-trade,  54. 

treatment  of  slaves,  55. 
INDIANS. 

enslaved  by  Spaniards,  137. 

effect  of  slavery  on,  138. 

decrease  of,  in  Hispaniola,  139. 
IRELAND. 

villains  in,  131. 

JAMAICA. 

mountains  of,  infested  by  Maroons,  157. 

end  of  apprentice  system,  190. 

decrease  of  negroes,  191. 

present  condition,  198. 
JAMES  I. 

grants  a  license  for  carrying  on  slave-trade,  143. 
JAPAN. 

slavery  in,  58. 
JAY. 

opposed  to  slavery,  170. 
JEAN,  FRANCOIS,  178. 
JEFFERSON. 

opposed  to  slavery,  170. 
JEWS. 

two  classes  of  slaves  among  the,  38. 

Hebrew  servants,  39. 

bond  servants,  40. 

rigorous  treatment  of  bond  servants,  41. 

value  of  slaves,  42. 

public  slaves,  42. 

manumission,  42. 

continuance  of  slavery,  43. 

eunuchs,  46. 

KLAROT^E. 

of  Crete,  65. 

LA  PLATA. 

negroes  in,  208. 


HISTORICAL   SKETCH   OF   SLAVERY.  329 

LAS  CASAS. 

urges  the  importation  of  negroes,  138. 
LAVAUX. 

appointed  Governor,  180. 

imprisoned,  180. 
LECHEVALIER. 

reports  of,  192. 
LE  CLERC. 

goes  to  Hayti,  183. 

opposed  by  Toussaint:  changes  his  tactics,  184. 

arrests  Toussaint :  attempts  to  restore  slavery,  and  dies,  184. 
LIBERIA,  212. 

colonization  in,  222. 

independence  of,  223. 

population,  225. 

colonization  an  experiment,  227. 
LIBERIANS. 

intellectual  progress  of,  226. 

moral  progress  of,  227. 
LOUIS  LE  HUTIN. 

enfranchises  slaves,  115. 
LUGENBEEL,  DR. 

account  of  diseases  in  Liberia,  225. 

on  the  future  of  Liberia,  228. 

MAINMORTE,  113. 
MALENFANT. 

opposes  emancipation  of  slaves,  178. 
MANUMISSION. 

among  the  Jews,  42. 

in  India,  52. 

under  Mohammedan  law,  53. 

in  Greece,  73. 

among  the  Romans,  92. 

restrictions  on,  under  Augustus,  94. 

encouragement  of,  by  Constantine  and  Justinian,  94. 

in  Germany,  104. 

in  Russia,  117. 

in  Great  Britain,  126. 

of  villains,  129. 

in  United  States,  211. 
MARMELADE,  RICHARD,  DUKE  OF. 

conspires  against  Christophe,  186. 

his  death,  187. 


330 


INDEX. 


MAROONS,  157. 
MASSACHUSETTS. 

slavery  in,  148. 

manumission,  148. 
MAURITIUS. 

effect  of  abolition  on  negroes,  200. 
MEDES  AND  PERSIANS. 

slavery  among,  56. 

sources  of  slavery,  56. 

power  of  master  over  slaves,  57. 
MENU. 

account  of  creation  of  men,  50. 
MERGE. 

ancient  kingdom  of,  196. 
METHODIST  MISSIONARIES. 

charged  with  inciting  rebellion  of  slaves,  189. 
METICS,  63. 
MIDDLE  PASSAGE. 

horrors  of,  155. 

increased  by  prohibitions  against  slave-trade,  167. 
MOHAMMEDAN. 

law  of  slavery,  52. 

sources  of  slavery,  52. 

slave-markets,  161. 
MULATTOES. 

in  Hayti,  175.  » 

contests  with  whites,  177. 

NAPOLEON  BONAPARTE. 

establishes  a  new  nobility  in  France,  116. 

passes  an  order  for  abolition  of  slave-trade,  165. 

resolves  to  restore  slavery  in  Hayti,  183. 

restores  slavery  in  other  West  India  islands  and  Guiana,  192 
NATIONAL  ASSEMBLY. 

decrees  political  privileges  to  all  free  persons  in  Hayti,  175. 

annuls  and  reissues  decree,  177. 

abolishes  slavery,  179. 
NEGROES. 

trade  in,  135. 

introduced  into  America,  139. 

superiority  over  Indians  as  slaves,  140. 

revolt  in  Hispaniola,  141. 

brought  to  England,  142. 


HISTORICAL   SKETCH    OF    SLAVERY.  331 

NEGROES,  Continued. 

number  imported  into  America,  152. 

number  exported  from  Africa,  154. 

different  tribes  of,  154. 

contentment  of,  156. 

decrease  in  West  Indies,  191. 

increase  in  United  States,  191.  • 

effect  of  abolition  on,  in  the  "West  Indies,  199. 

in  the  United  States,  201. 

intellectual  and  moral  condition,  202. 

improvement  in  United  States,  212. 

idleness,  217. 

lewdness,  219. 

future  in  America,  221. 

aversion  to  labor,  225. 

incapacity  for  independent  civilization,  228. 
NEGRO  SLAVERY. 

among  the  Jews,  40. 

the  Egyptians,  45. 

in  India,  54. 

in  Assyria,  56. 

in  the  East,  58. 

in  Greece,  66. 

in  Rome,  81. 

in  Turkey,  118. 

early  existence  of,  134. 

in  Great  Britain,  146. 

adapted  to  the  South,  172 
NEW  ENGLAND. 

slavery  in,  147. 
NEW  GRENADA. 

slavery  in,  206. 

emancipation,  207. 
NEW  JERSEY. 

slavery  in,  149. 
NEW  YORK. 

slavery  in,  148. 
NORMANS. 

effect  of  invasion  of,  127. 
NORTH  CAROLINA. 

slavery  in,  150. 
NUNEZ,  VASCO. 

employs  Africans,  140 


332  INDEX. 

OGE,  VINCENT. 

demands  the  execution  of  decree  recognizing  rights  of  mulat- 
toes,  1Y5. 

defeat  and  death,  ITS. 
ORTIZ  DE  ZUNIGA. 

ecclesiastical  annals  of,  135. 
OVANDO. 

instructions  of  Spanish  court  to,  138. 

PAEIS. 

treaty  of,  185. 
PARLIAMENT. 

acts  of,  regulating  wages,  130. 

reports  to,  132. 

efforts  to  improve  the  condition  of  the  poor,  133. 

makes  free  the  African  trade,  143. 

encourages  slave-trade,  145. 

restricts  the  number  of  slaves  to  be  carried  on  vessels,  156. 

appoints  committees  to  inquire  into  the  expediency  of  emanci- 
pation, 189. 

efforts  to  improve  the  condition  of  the  West  Indies,  198. 
PELASGI,  60. 
PENEST^E. 

of  Thessaly,  65. 
PENN. 

proposes  to  improve  condition  of  slaves,  149. 
PENNSYLVANIA. 

slavery  in,  149. 
PERIOIKI,  63. 

of  Crete,  65. 
PERSIANS. 

Medes  and.    See  MEDES. 
PERU. 

slavery  in,  207. 
PETION. 

conspires  against  Dessalines,  186. 

elected  president  of  Hayti,  186. 

course  of,  186. 

cruelty,  186. 
PHILIP  V. 

enters  into  a  treaty  on  the  slave-trade,  145. 
PLATO. 

thinks  slavery  essential  in  a  republic,  59. 

speaks  of  treatment  of  slaves,  69. 


HISTORICAL   SKETCH   OF   SLAVERY.  333 

POLAND. 

slavery  in,  1 1 7. 

slave-trade,  135,  146. 
POLVEREL. 

consents  to  liberation  of  blacks,  179. 

publishes  agricultural  regulations,  179. 
PORT  AU  PRINCE. 

partly  consumed,  177. 

destroyed,  178. 

surrendered  to  the  British,  179. 
POWER  OF  MASTER  OVER  SLAVES. 

in  India,  52. 

under  Mohammedan  law,  53. 

among  the  Medes  and  Persians,  57. 

among  the  Romans,  86. 

in  Russia,  117. 

in  Turkey,  118. 

under  Saxon  rule,  123. 
PRELLBATION. 

right  of,  114. 
PUFFENDORF. 

opinion  on  the  origin  of  slavery,  36. 

QUAKERS. 

oppose  slavery,  162. 

RHODE  ISLAND. 

slavery  in,  148. 
RICH,  SIR  ROBERT. 

obtains  a  charter  for  carrying  on  the  slave-trade,  143. 
RIGAUD. 

assumes  an  independent  position,  181. 

driven  out  by  Toussaint,  182. 

returns  to  Hayti,  187. 

dies,  187. 
RIGHT  OF  SEARCH. 

to  prevent  slave-trade,  166. 
ROBERTS,  GOVERNOR. 

of  Liberia,  223. 
ROCHAMBEAU. 

succeeds  Le  Clerc,  185. 

character,  185. 

overcome  by  Dessalines,  185. 


334  INDEX. 

EOLLIN,  M.  LEDRU. 

proposes  to  redeem  slaves,  195. 
ROMANS. 

sources  of  slavery,  74. 

paternal  power,  75. 

power  of  debtor  to  sell  himself,  75. 

abolition  of  law  permitting  it,  76. 

violation  of  law  a  source  of  slavery,  76. 

wars  a  source  of  slavery,  77. 

piracy  a  source,  78. 

tyranny  of  Proconsuls,  78. 

law,  regulating  the  sale  of  slaves,  80. 

slave-dealers  odious,  81. 

number  of  slaves,  82. 

uses  of  slaves,  84. 

fugitive  slaves,  88. 

punishment  of  slaves,  92. 

freedmen,  94. 

cessation  of  slavery,  95. 

causes  of  cessation,  96. 

effects  of  Christianity  upon  slavery,  96. 
RUSSIA. 

slavery  in,  117. 

power  of  master  over  slaves,  117. 

emancipation,  117. 

SALZBURGHERS. 

oppose  slavery,  151. 
SAXONS. 

slavery  among  the,  123. 

condition  of  slaves,  123. 

sources  of  slavery,  123. 

fugitive  slaves,  125. 

price  of  slaves,  125. 

punishment  of  slaves,  125. 
SCOTLAND. 

villanage  in,  130. 
SEMIRAMIS. 

introduced  the  custom  of  making  eunuchs,  56. 
SENECA. 

treatment  of  slaves,  98. 
SERFS. 

in  France,  112. 

character  of,  in  Russia,  118. 

efforts  to  improve  condition  of,  119. 

in  Hungary  and  Transylvania,  119. 


HISTORICAL   SKETCH   OF   SLAVERY.  335 

SHARP,  GRANVILLE. 

opposes  slave-trade,  164. 
SIERRA  LEONE,  222. 
SLAVES. 

value  of,  among  the  Jews,  42. 

public  slaves,  42. 

in  Egypt,  45. 

in  India,  55. 

number  in  India,  55. 

public  slaves  in  Greece,  66. 

price  in  Greece,  66. 

protection  at  Athens,  70. 

homicide  of,  at  Athens,  71. 

not  considered  as  persons,  71. 

torture  as  witnesses,  72. 

different  kinds  in  Rome,  81. 

number  of,  82. 

used  as  gladiators,  84. 

price  in  Rome,  85. 

status,  85. 

peculium,  88. 

value  in  France,  113. 

condition  of  Saxon  slaves,  123. 

price  in  Great  Britain,  125. 

introduced  into  United  States,  147. 

price  in  United  States,  156. 

insurrection  in  Hayti,  176. 

crown  slaves  liberated,  188. 

insurrections,  189. 

want  of  chastity  of  females,  218. 
SLAVERY. 

early  existence  and  universality  of,  35. 

for  debt,  abolished  in  Egypt,  45. 

when  unprofitable,  47. 

universal  in  the  East,  57. 

continues  unchanged,  58. 

introduced  into  Grecian  mythology,  91. 

ceases  among  the  Romans,  95. 

morality  of,  among  the  Romans,  97. 

exists  in  fact  on  the  continent,  119. 

of  females,  in  Saxony,  120. 

effect  on  the  Indians,  138. 

becomes  a  social  institution,  160. 

unprofitable  in  the  Northern  States,  170. 


336  INDEX. 

SLAVERY,  Continued. 

character  of,  in  British  West  Indies,  190. 

in  Brazil,  206. 

in  New  Grenada,  206. 

benefits  and  evils  of,  213. 

conservatism  of,  213. 

comparative  cheapness,  216. 

social  benefits  and  evils,  217. 

a  patriarchal  institution,  218. 
SLAVE-TRADE. 

early  origin  of,  26. 

among  the  Jews,  40. 

in  India,  54. 

among  the  Medes  and  Persians,  56. 

the  Romans,  79. 

effects  of  wars  on,  115. 

in  Great  Britain,  125. 

negro,  origin  of,  135. 

commencement  in  America,  139. 

conducted  by  Genoese,  140. 

English  companies  chartered,  143. 

France  and  Portugal  engage  in,  144. 

treaty  between  England  and  Spain,  145. 

sanitary  regulations,  145. 

encouraged  by  Parliament,  145. 

carried  on  by  Portugal,  France,  and  Holland,  146. 

approved  by  Massachusetts,  147. 

opposed  by  Virginia,  Maryland,  and  South  Carolina,  153. 

prohibited  by  Georgia,  153. 

general  extension  of,  160. 

efforts  of  Christian  nations  to  abolish,  162. 

declared  to  be  piracy,  166. 

continues  unabated,  167. 
SLAVE-MARKETS. 

among  the  Egyptians,  45. 

in  Greece,  66. 

in  Rome,  79. 

in  Constantinople,  118. 
SOMERSETT. 

case,  160. 
SOLON. 

relief  law,  61. 
SONTHONAX. 

proclaims  liberty  to  slaves,  179. 


HISTORICAL   SKETCH    OF    SLAVERY.  337 

SOUDRAS,  51. 
SOUTH  CAEOLINA. 

slavery  planted  with,  150. 

prohibits  introduction  of  slaves,  164. 
SPAIN. 

treaty  for  cessation  of  slave-trade,  166. 

declares  war  with  France,  178. 

reacquires  St.  Domingo,  185. 
SPANIARDS. 

religious  fervor  of,  136. 

enslaved  Indians,  137. 

treatment  of  slaves,  157. 
SPARTA. 

Helots  of,  64. 
SPARTANS. 

treatment  of  slaves,  65. 
STATES,  FREE. 

prohibit  the  introduction  of  free  negroes,  212. 
ST.  DOMINGO,  174. 

Central  Assembly  convened,  183. 

receded  to  Spain,  185. 

revolt,  187. 
SWEDEN. 

ameliorates  the  condition  of  the  slave,  123. 

abolishes  slavery,  192. 

TECMESA,  62. 
TIBA,  39. 
TOUSSAINT. 

made  general  of  brigade,  180. 

drives  out  the  English,  181. 

desires  independence  of  Hayti,  182. 

becomes  master  of  Hayti,  182. 

confirmed  in  his  power,  182. 

takes  possession  of  Spanish  portion,  182. 

becomes  governor  for  life,  183. 

opposes  Le  Clerc,  is  deserted,  arrested,  and  dies,  184. 
TRANSYLVANIA. 

serfs  in,  119. 
TREATMENT. 

of  Hebrew  servants,  39. 

of  bond  servants,  41. 

of  slaves  in  Egypt,  46. 

in  India,  55. 

22 


338  INDEX. 

TREATMENT,  Continued. 

in  China,  58. 

in  Greece,  69. 

in  Rome,  87. 

in  German  States,  102. 

of  serfs  in  France,  112. 

in  Turkey,  of  slaves,  118. 

by  Spaniards,  157. 

by  English  colonists,  158. 
TROPLONG,  M. ' 

describes  the  effects  of  Christianity,  97. 
TURKEY. 

slavery  in,  118. 

slave-market,  118. 

right  of  redemption,  118. 
TYRE. 

revolt  of  slaves,  97. 

ULYSSES. 

the  son  of  a  concubine,  62. 
UNITED  STATES. 

slaves  first  introduced,  147. 

cotton  first  cultivated,  147. 

Constitution  limits  slave-trade,  153. 

increase  of  negroes,  191. 

effects  of  abolition  on  negroes,  201. 

slavery  in,  209. 

first  abolition  society,  209. 

decisions  of  Supreme  Court  on  slavery,  211. 

treatment  of  slaves,  212. 

increase  and  improvement  of  negroes,  212. 

VENICE. 

slavery  in,  116. 
VILLAINS. 

in  Germany,  110. 

in  Great  Britain,  129. 

manumission  by  Edward  III,  129. 

in  Ireland,  131. 
VILLANAGE. 

in  Germany,  110. 

in  Great  Britain,  128. 

base  villanage  gives  way  to  privileged,  129. 

extinction  in  Great  Britain,  129. 

in  Scotland,  130. 


LAW   OF  NEGRO   SLAVERY.  339 

VILLATTE. 

imprisons  Governor  Lavaux,  180. 
defeated,  180. 
VIRGINIA. 

in  favor  of  emancipation,  170. 
insurrection  of  slaves,  211. 

WASHINGTON. 

emancipates  his  slaves,  170. 
WEST  INDIES,  BRITISH. 

decrease  of  slaves,  191. 

effects  of  abolition,  197. 
WHITFIELD,  REV.  GEORGE. 

advocates  introduction  of  slaves,  151. 
WILBERFORCE. 

labors  for  the  abolition  of  slave-trade,  164. 

of  slavery,  188. 

XIMENES,  CARDINAL. 

undeservedly  praised  for  opposition  to  the  introduction  of  ne- 
groes, HI. 

YEAMANNS,  SIR  JOHN. 

introduces  slaves  into  South  Carolina,  150. 
YORK,  DUKE  OF. 

engages  in  slave-trade,  143. 

ZENDAVESTA. 

recognizes  castes,  56. 
ZOROASTER. 

regulations  of,  recognize  caste,  58. 


LAW  OF  NEGRO  SLAVERY. 

(The  references  are  to  sections.) 

ACTION. 

for  injury  to  slave,  93. 

for  battery  of,  112  a. 

against  patrol  for  excessive  punishment,  115. 

for  causing  death  of,  326. 

for  inciting  to  crime,  326. 

by  slave  in  a  non-slaveholding  jurisdiction,  278. 


340  INDEX. 

ACTION,  Continued. 

does  not  lie  by  slave,  278. 

except  suits  for  freedom,  278. 

same  rule  in  other  countries,  278. 

master  cannot  sue  on  executory  contract  of  stranger  with  slave, 
262. 

nor  a  promissory  note  to,  268. 

nor  for  legacy  to,  262. 

may  sue  for  deposits  of,  267. 

but  not  for  purchases  with  such  investments,  267. 

on  contract  with  stranger  for  emancipation.  268,  368. 

or  with  slave,  367. 

does  not  lie  on  contract  made  before  emancipation,  277. 

suits  for  freedom,  how  regulated,  279,  295. 

when  right  depends  on  unproved  will,  282,  283. 

bill  quia  timet  to  prevent  removal  pending  suit  for  freedom,  284. 

suits  for  freedom,  favored,  285. 

parties  and  pleadings  in,  286. 

joinder  of  parties,  286. 

stranger  cannot  institute,  286. 

exclusive  remedy  to  determine  right,  286. 

issue  in,  287. 

want  of  title  in  claimant  immaterial,  287. 

aliter  under  civil  law,  287. 

evidence  in,  287. 

inspection  of  person,  287. 

admissions  of  alleged  slave,  287. 

practice  as  to  motions,  &c.,  288. 

damages  in,  289. 

effect  of  judgment,  290. 

same  rule  in  case  of  villeins,  292. 

estoppel,  291,  292. 

statute  of  limitations  does  not  include,  293. 

no  prescription  against,  293. 

jurors  in  disqualification  of,  294. 

wager  of  battle  in,  295. 

remedy  for  provision  for  slave  will,  335. 

where  manumitted  by  will,  357. 

where  executor  or  possessor  refuses  to  surrender,  366. 

freedom  of  alleged  slave  no  bar  to  other  action  by  possessor,  286. 
ADMISSIONS. 

by  slave,  255,  287,  317. 
AGENT. 

slave  incapacitated  except  for  master,  299. 


LAW   OF   NEGRO   SLAVERY.  341 

AGENT,  Continued. 

when  implied  for  master,  299. 

Roman  law,  300. 

prohibitions  against  employment,  301. 
AMENDMENTS  OF  LAW  SUGGESTED. 

evidence  of,  257. 

marriage  relation,  276. 

protection  of  statuliberi,  390. 

rape,  107. 

suits  for  freedom,  281. 
ASSETS. 

marshalling  of,  358. 

manumitted  slave,  when  and  how  made  assets,  349,  357. 

where  deficiency  is  less  than  value  of  slave,  359. 

deficiency,  how  ascertained  to  avoid  manumission,  360. 

BAIL,  318. 

BILL  QUIA  TIMET. 

to  prevent  removal  pending  suit  for  freedom  or  probate  of  will 
emancipating,  284. 

CITIZEN. 

citizenship  is  gift  of  State  only,  384. 
mixture  of  blood  disqualifies,  391. 
negro  not  a  citizen  by  manumission,  354. 
grant  of  right  of  by  one  State  to  negro,  388,  38J3. 
COMITY. 

part  of  law  of  nations,  140. 

exceptions  and  grounds  of  rule,  140. 

permanent  retention  of  slave  in  free  State,  not  allowed  by,  142. 

transit  of  slaves  permissible  by,  143,  201. 

Lord  Mansfield's  doctrine  conflicts  with  rule,  144. 

does  not  violate  policy  of  free  State,  145. 

right  of  strangers  to  carry  property,  155,  233,  234. 

law  of  domicile  of  owner  governs  title,  234. 

limit  of  the  rule,  153,  235. 

law  framed  by  courts,  153. 

Story's  view  examined,  157  et  seq. 

effect  of  union  of  the  United  States,  198  et  seq. 

remedy  for  disregard  by  one  State,  203  et  seq. 

excluded  only  by  express  law,  226. 

American  decisions  as  applied  to  slavery,  227  et  seq. 


342  INDEX. 

CONFLICT  OF  LAWS. 

domicile  and  residence  of  mother  of  slave,  79. 

change  of  mother's  domicile  after  birth  of,  80. 

instruments  construed  by  lex  loci  contractus,  81. 

unless  contrary  to  policy  of  forum,  81. 

when   instrument  operates  on  mother,  domiciled  abroad  and 

issue  is  born,  81  a. 
fugitive  slaves,  128,  224. 
law  of  personal  qualities  and  capacities  accompanies  resident 

abroad,  136. 

until  new  domicile  acquired,  137,  235. 
or  there  is  an  express  law,  226. 
sojourner  does  not  lose  law  of  domicile,  137. 
cases  of  marriage,  infancy,  &c.,  138. 
existing  relations  imported  with  persons,  138. 
express  law  of  forum,  superior  there,  138. 
permanent  retention  of  slaves  in  free  State  not  required  by 

comity,  142. 

aliter  of  one  removing  from  necessity  or  temporarily,  143,  224. 
doctrine  of  Lord  Mansfield  examined,  144. 
property  of  travellers,  151,  153. 
slavery,  whether  exceptional,  156, 167. 
opinions  of  jurists  on  the  question,  167. 
decisions  of  foreign  courts  examined,  168,  197,  198,  n. 
of  English  courts,  172, 197. 
superiority  of  continental  jurists,  173. 
effect  of  union  of  the  United  States,  198  et  seq.,  234. 
effect  of  return  from  free  to  slave  State,  222,  239,  373. 
American  decisions,  216  et  seq. 

emancipation  Statute,  not  operative  on  slave  in  transitu,  232. 
incapacity  of  slave  to  contract  accompanies  him,  277. 
removal  of  statuliberi  to  State  prohibiting  such  manumission, 

347. 

onus  probandi  of  legality  of  foreign  manumission,  347. 
foreign  deed  or  will  operating  on  slaves  within  the  jurisdiction, 

348. 
CONTRACT. 

slave  cannot,  265. 

Roman  law,  265. 

effect  of  subsequent  manumission,  265. 

law  of  domicile  of  master  accompanies  slave  on  removal,  278. 

hiring  of  time  to  slave,  267. 

deposits  recoverable  by  master,  267. 

executory,  with  stranger,  void,  268. 


LAW    OF   NEGRO   SLAVERY.  343 

CONTRACT,  Continued. 

executed,  voidable  by  master,  268. 

with  stranger,  for  emancipation,  268,  368. 

with  slave,  367. 

effect  of,  by  master  with  slave,  269,  369. 

by  slaves,  prohibited,  369. 

of  marriage  between  slaves,  a  nullity,  270. 
CONTUBERNIUM,  270. 
CONSTITUTION. 

effect  on  law  of  comity,  198,  215. 

effect  of  restraints  on  force,  202. 

remedy  for  refusal  of  a  State  to  exercise  comity,  203,  214. 

art.  4,  sections  1,  2,  apply  to  laws,  205  et  seq. 

power  to  determine  the  effect  thereof,  207. 

effect  of  judgments  under,  208. 

Story's  view,  209. 

power  to  determine  effect  of  State  laws,  extraterritorially,  never 
exercised,  211. 

argument  against  it  considered,  212,  213. 

secures  (not  confers)  reclamation  of  fugitives,  218,  241. 

act  of  1793,  243. 

citizenship  granted,  by  one  State,  to  negroes,  388,  389. 
CRIMINAL  LAW. 

injuries  to  person  or  life  of  slave,  83,  93,  103. 

statutes  for  protection  of,  87. 

effect  of  ordinary  statutes,  88,  91. 

penalties  for  offences  against  slave  statutory  only,  92. 

jurisdiction  statutory  only,  320. 

cruelty  to,  106. 

violation  of  female  only  punishable  civilly,  107. 

manslaughter  of,  how  punishable,  100. 

assault  on,  with  intent  to  kill,  101. 

presumptions  in  case  of  homicide  of  slave,  102. 

regulations  in  South  Carolina,  102. 

laws  in  United  States,  compared  with  others,  108,  110. 

not  a  person  within  ordinary  legislation,  303. 

presence  of  slave  will  not  make  a  riot,  303. 

gaming  with,  not  within  statute,  303. 

extenuation  of  crimes  against,  95. 

of  homicide  by,  98,  99. 

harboring  fugitives,  121. 

declarations,  when  admissible,  254. 

confessions  of,  against  white  accessories,  255. 

husband  and  wife  competent  against  each  other,  275. 


344  INDEX. 

CRIMINAL  LAW,  Continued. 

evidence,  315,  317. 

extenuation  of  crime,  by  quasi  marital  relation,  275. 

when  committed  under  influence  of  master,  305,  300. 

punishments  of  slaves,  302,  307. 

discretion  of  courts,  308,  309. 

accessories,  304. 

courts  for  trial  of,  310,  320. 

practice  on  trials  of,  310,  320. 

trial  by  jury,  when  secured,  311. 

auterfois  acquit  or  convict  pleadable,  311. 

averments  in  indictments,  312. 

right  of  master  pending  trial,  313. 

bail,  318. 

statutes  relating  to  slave,  construction  of,  321. 

justification  by  slave,  322. 

insurrection  and  rebellion  defined,  323. 

penal  slave  code  applies  to  free  negroes,  387. 
CRUELTY. 

to  slave,  104,  106. 

DAMAGES. 

in  suits  for  freedom,  289. 
DEBTOR  AND  CREDITOR. 

issue  born  after  manumission,  voidable  by  creditors,  72,  341). 

manumission  by  an  insolvent,  331. 

valid  until  avoided,  349. 

proceedings  to  determine  fact,  349. 

by  will  of  an  insolvent,  349. 

and  see  title  ASSETS. 
DEED  OF  MANUMISSION. 

reservation  of  issue,  void,  72,  333. 

construction  of,  78,  342,  350. 

what  it  includes,  337. 

requisites  of,  339. 

reservation  of  title  on  condition  subsequent,  void,  342. 

contravening  statutory  policy,  344. 

evading  law,  346,  348. 

operating  on  slaves  in  another  jurisdiction,  348. 

fraudulent  as  to  creditors,  331,  349. 

presumption  of,  351. 
DEPOSITES. 

right  of  master  to  sue  for,  267. 
DESCENT. 

part  us  sequitur  ventrem,  70. 


LAW   OF   NEGRO   SLAVERY.  345 

DESCENT,  Continued. 

common  law  rule,  71. 

bastard,  71. 

slave  has  no  inheritable  blood,  263,  275. 

manumitted  slave  may  trace  descent  through  slave,  263,  275. 
DOMICILE. 

what  constitutes,  130. 

of  origin,  132. 

change  of,  must  be  proved,  132. 

law  of  mother's,  determines  status  of  offspring,  79. 

of  master,  that  of  slave  generally,  82. 

slave  cannot  alter,  82,  129. 

change  of,  how  effected,  130,  133. 

intent  to  return  not  conclusive,  130,  131. 

residence,  prima  facie  evidence  of,  131. 

involuntary  residence  inoperative,  131. 

declarations,  evidence  on  question,  133. 

law  of,  to  what  it  extends,  134. 

until  new  domicile  is  acquired,  137. 

determined  status  of  slave,  135. 

effect  on  marriage,  infancy,  &c.,  138. 

on  traveller,  or  sojourner  with  slave,  143. 

property  of  strangers  on  transit,  151,  153. 

express  statute,  necessary  to  exclude  law  of,  226. 

contracts  governed  by,  277. 

ELECTION  OF  FREEDOM,  78,  363. 
EMANCIPATION. 

manumission  defined,  327. 
,  different  kinds  of,  336. 
effect  on  issue,  when  conditional,  71  a,  72. 
when  voidable  by  creditors,  issue  is  free,  72. 
conditional,  of  mother,  73,  75. 
or  at  her  election,  73,  75. 

future  or  immediate,  with  postponement  of  enjoyment,  76, 78,333. 
condition  of  issue  in  such  cases,  76,  78,  333. 
reservation  of  issue  void,  333. 
statutes  for  gradual  abolition,  effect  on  issue,  77. 
confined  to  issue  born  within  State,  when,  77. 
construction  of  instruments  of,  78,  342,  350. 
at  election,  78,  342,  350. 
by  removal  to  free  State,  142,  235,  371. 
aliter  if  for  transit  only,  143,  149. 
or  for  temporary  purpose,  165,  198,  n.  a.  v.  221. 
or  by  owner  incompetent  to  contract,  371. 


346  INDEX. 

EMANCIPATION,  Continued. 
or  under  duress,  371. 
or  being  one  of  several,  372. 
or  tenant  for  life,  372. 
or  mortgagor,  372. 

removal  with  intent  to  reside,  220,  235. 
Jones  v.  Van  Zandt  remarked  upon,  221. 
return  from  free  to  slave  State,  222,  239. 
statute  for,  inoperative  on  slave  in  transitu,  232. 
not  effected  by  escape,  240. 
contract  for,  with  third  person,  268. 
contracting  with  slave,  effect  of,  269,  369. 
does  not  confer  inheritable  blood,  275. 
nor  validate  contract  made  while  slave,  277. 
right  of,  coextensive  with  slavery,  327. 
not  dependent  on  express  law,  328,  329. 
law  regulates  and  restrains  only,  328,  329. 
master,  capable  of  contracting,  may,  328,  329. 
where  several,  all  must  unite,  329. 
effect  of,  by  one  of  several,  329. 
owner  of  profits  cannot,  330. 
nor  owner  of  particular  estate,  330. 
remainder-man  may,  330. 
to  evade  liability  for  maintenance,  331. 
by  an  insolvent,  331,  349,  357. 
Roman  law,  331,  349,  357. 
when  restrained,  332,  340. 
qualified,  illegal,  334. 
by  deed,  what  is  included,  337. 
formalities  under  Roman  law,  337. 
in  England,  338. 
requisites,  339,  342. 

declaration  of  future  intent  insufficient,  339,  342. 
judicial  interpretation  affected  by  State  policy,  340. 
form,  when  written  instrument  is  required,  341,  342. 
conditions  precedent  and  subsequent,  341,  342. 
effect  of  sale  after  manumission,  341,  342. 
statutory  regulations,  340. 
reservation  of  title  on  return  to  State,  void,  342. 
compliance  with  statutory  regulations,  343. 
contrary  to  statutory  policy,  void,  344,  348. 
statuliberi  removed  to  State  prohibiting  such  emancipation, 

347. 

onus  probandi  as  to  lawfulness  of  foreign  manumission,  347. 
of  slaves  sent  abroad,  with  intent  to  return,  348. 


LAW   OF   NEGRO    SLAVERY.  347 

EMANCIPATION,  Continued. 

presumption  of,  353. 

judgment  of  court  on,  when  void,  352. 

by  will,  valid  unless  prohibited,  353. 

formalities  required,  354. 

not  aided  by  reference  in  a  conveyance,  354. 

assent  of  executor  requisite,  354. 

revocation  of  sale  or  gift,  355. 

issue  born  before  probate,  355. 

construction  of  wills,  355,  356. 

remedy  of  slave,  when  other  assets  are  sufficient,  357. 

sale  by  executor  under  such  circumstances,  357. 

marshalling  of  assets,  358. 

where  deficiency  is  less  than  value  of  slave,  359. 

sale  under  execution  against  executor,  when  void,  359. 

deficiency,  how  ascertained,  360. 

abatement  of  legacy  of  freedom  with  other  legacies,  361. 

when  illegal,  falls  into  residue,  362. 

at  election  of  slave,  whether  void  or  not,  78,  363. 

on  condition  of  removal,  prohibited  by  lex  loci,  364. 

delay  of  executor  in  complying  with  statutory  regulations,  365. 

not  avoided  by  collusion  of  executor,  365. 

remedy  of  legatee  for  manumission,  366. 

sale  with  condition  for,  368. 

by  laws  of  State,  371  et  seq. 

of  mortgaged  slave,  372. 

not  affected  by  return  from  place  where  freed  by  law,  373. 

by  violations  of  law,  imposing  this  penalty,  374,  378,  379. 

aliter  if  this  penalty  not  imposed,  374,  378,  379. 

by  failure  to  comply  with  regulations,  374,  378,  379. 

failure  of  infant  or  feme  covert,  375. 

regulations  apply  only  to  voluntary  importations,  375. 

presumption  of,  from  acts  of  master,  380,  382. 

once  perfected,  cannot  be  altered,  383. 

effect  on  citizenship,  384  et  seq. 

suits  for  freedom.    See  ACTION. 
ESTOPPEL.    See  ACTION. 
EVIDENCE. 

presumptions  of  status  of  slavery,  67,  68.     . 

origin  of,  69. 

to  whom  it  extends,  69. 

enjoyment  of  personal  liberty  presumes  freedom,  111. 

disqualification  of  slave,  247. 

justification  of  rule,  256. 

common  law  rule,  248. 

under  feudal  system,  249. 


348  INDEX. 

EVIDENCE,  Continued. 
of  civil  law,  250. 
ofCodeNoir,  251. 

report  of  British  Commissioners  on  this,  251. 
Jewish  rule,  251. 

complaint  of  violation  of  this  rule,  252. 
statutory  regulations  iu  United  States,  253. 
prohibition  on  free  negroes  in  some  States,  253. 
husband  and  wife  competent,  253. 
declarations,  254. 

agreement  may  render  slave  competent,  255. 
silence  as  to  statements  of  slaves,  255. 
conversations  with  whites  admissible  against  them,  255. 
information  received  from  slave  as  explanatory  of  conduct,  255. 
confessions  admissible  against  accessories,  255. 
amendment  suggested,  257. 
in  suits  for  freedom,  287. 
of  agency  for  master,  299. 
in  criminal  cases,  315. 
master  competent  witness  for,  316. 
confessions  of  slave,  317. 
judgment,  when  requisite  to  emancipation,  how  far  evidence, 

343. 

when  void,  352. 

presumption  of  deed  of  manumission,  351. 
of  manumission  from  acts  of  master,  380,  382. 
parol,  to  supply  omission  in  collector's  certificate,  377. 

FREE  PERSONS  OF  COLOR. 

not  citizens  by  emancipation,  384. 

status,  that  of  alien  friend,  384. 

in  Georgia,  385. 

rights  of,  384. 

may  contract  marriage,  386. 

marriage  with  whites  prohibited,  386. 

may  make  will  or  contract,  386. 

estates  subject  to  ordinary  laws,  386. 

guardian  for,  required,  387. 

prohibited  from  acquiring  slaves,  or  purchasing  liquors,  387. 

Penal  Slave  Code,  generally  embraces,  387. 

grant  of  citizenship  by  one  State,  388,  389. 

cannot  sue  in  the  Federal  Courts,  389. 
FREEDOM. 

suits  for,  see  ACTION. 


LAW   OF   NEGRO    SLAVERY.  349 

FUGITIVES. 

issue  of,  79,  s.  v.  n.  3. 

homicide  of,  unlawful,  96. 

though  suspected  of  felony,  96. 

liabilities  of,  118. 

how  far  outlaw,  118. 

harboring  or  concealing,  121. 

set-off  for  necessaries,  121. 

right  of  recapture,  122,  164. 

stranger  may  arrest,  120,  122. 

Roman  law,  123. 

law  of  France,  124. 

of  Germany,  125. 

Greece,  126. 

West  Indies,  126. 

ecclesiastical,  127. 

escape  into  another  State,  128,  164. 

conflict  of  laws,  where  that  is  non-slaveholding,  128,  164. 

opinions  of  jurists,  158  et  seq.,  198  n. 

produces  no  change  in  status,  240. 

reclamation  secured  by  Constitution,  218,  242. 


Act  of  1793,  for  return  of,  242. 
constitutionality  of  that  Act,  243.     " 
contracts  of,  governed  by  law  of  domicile,  277. 


GIFTS. 

to  slave,  262. 

HOMICIDE. 

of  slave,  what  extenuates,  95,  323,  325. 

of  fugitives,  unlawful,  96,  325. 

foy  overseer,  when  negro  flies  from  punishment,  96. 

nor  when  suspected  of  felony,  96. 

by  slave,  when  justifiable,  98,  322. 

when  extenuated,  99. 

manslaughter  of  slave,  how  punishable,  100. 
HUSBAND  AND  WIFE. 

relation  not  recognized  among  slaves,  253. 

does  not  exclude  them  as  witnesses,  253. 

IMPORTATION. 

where  prohibited,  374,  375. 

return  after  removal,  animo  remanendi,  376. 

by  hirer  not  within,  377. 

parol  evidence,  to  supply  omission  in  collector's  certificate,  377. 


350  INDEX. 

INSURRECTION. 

what  amounts  to,  323. 
ISSUE. 

partus  sequitur  ventrem,  70. 

common  law  rule  of,  71. 

of  mother  emancipated  in  future,  71  a. 

subsequent  enslavement  of  mother  immaterial,  72. 

future  issue  cannot  be  reserved  by  deed  presently  emancipating 

mother,  72. 

avoidance  of  manumission  by  creditors,  72,  349. 
conditional  emancipation  of  mother,  73. 
of  statuliberi,  74,  75. 
effect  of  future  or  immediate  emancipation,  with  postponement 

of  enjoyment,  76,  78. 

effect  of  statutes  for  gradual  abolition,  77. 
when  these  confined  to  those  born  within  State,  77. 
law  of  mother's  domicile  determines  status,  79. 
change  of  mothers  domicile  after  birth,  80. 
lex  loci  contractus  as  to  mother  yields  to  law  of  domicile  of 

issue,  81  a. 
of  slave  manumitted  by  will,  born  before  probate,  355. 

JUDGMENT. 

on  manumissions,  effect  of,  343. 

when  void,  352. 
JURORS. 

in  suits  for  freedom,  when  disqualified,  294. 

LAW  OF  NATURE. 

what  it  is,  4,  9,  14. 

varies  with  races  and  habits,  10. 

distinguished  from  state  of,  11. 

slavery  of  negroes  alone  consistent  with,  15. 
LEGACIES. 

to  slave,  262. 

by  slave,  263. 

to  slave,  to  be  emancipated,  344. 

abatement  of  legacy  of  freedom,  361. 
LIMITATIONS,  STATUTE  OF. 

suits  for  freedom,  not  within,  293. 

nor  right  of  master  barred  by,  293. 

MANSFIELD,  LORD. 

opinions  as  to  slavery,  182. 


LAW   OF   NEGRO    SLAVERY.  351 

MANUMISSION.    See  EMANCIPATION. 
MASTER. 

•    defined,  1. 

power  over  slave,  85  et  seq. 

assemblies  on  his  premises,  117. 

furnishing  liquor,  117. 

hiring  time  to  slaves,  117. 

permitting  slave  to  go  at  large,  117. 

restraint  .on  grant  of  permits,  118. 

not  liable  for  necessaries  furnished  fugitive,  121. 

right  to  recapture,  122. 

to  property  or  gains  of  slave,  258.. 

•where  several  masters,  258. 

peculium,  258. 

law  of  villains,  259. 

in  other  countries,  260. 

property  found  by  slave,  261. 

legacies  to  slave,  262. 

cannot  sue  on  executory  contract  of  stranger  with  slave,  262, 
268. 

nor  on  promissory  note  to,  268. 

peculium  on  death  of  master  goes  to  master,  264. 

cannot  contract  with  slave,  267. 

hiring  of  time  to,  void,  267. 

may  recover  deposits,  267. 

but  not  property  purchased  with,  267. 

contract  with  stranger  for  emancipation,  268. 

no  prescription  against  right  of,  293. 

aliter  as  to  villains,  293. 

right  of,  subordinate  to  that  of  Commonwealth,  313. 

remains  during  trial  of  slave,  313. 

obstructing  arrest  of  slave  by,  314. 

penalties  for,  314. 

sale  after  crime  committed  by  slave,  314. 

competent  witness  for  slave,  316. 

liability  for  consequences  of  slave's  crimes,  319. 

not  for  costs  of  prosecution,  319. 

action  by,  for  consequential  injuries  to  slave,  326. 

or  for  causing  death  of,  326. 

or  for  inducing  to  crime,  326. 

limits  to  right  of  manumission,  328. 

effect  of  manumission  by  one  of  several,  329. 

owner  of  profits  merely  cannot  manumit,  330. 

nor  tenant  of  particular  estate,  330. 

remainderman  may,  330. 


352  INDEX. 

MASTER,  Continued. 

manumission,  when  voidable,  331. 

by  an  insolvent,  331. 
MARRIAGE. 

of  slave,  not  recognized  by  law,  270. 

Roman  law,  270. 

effect  of  subsequent  emancipation,  270. 

existed  among  villains,  271. 

among  the  Germans,  272. 

among  the  Hebrews,  273. 

between  the  free  and  the  slave,  274. 

legal  consequences  of,  do  not  exist,  275. 

issue  cannot  inherit,  275. 

power  of  parents  over  children,  275. 

extenuation  of  crime  by  the  relation,  275. 

NEGRO. 

defined,  19. 

alone  subject  of  slavery,  15. 

advantages  to  from  slavery,  18. 

physical  adaptation  for,  20,  47. 

peculiarities  of,  21,  34,  35. 

mental  inferiority.  22,  31. 

adaptation  of,  general  character  for  slavery,  32,  36. 

history  of  civilization  of,  37,  49. 

adaptation  to  slavery,  44,  48,  50. 
NOTICE. 

purchaser  from  executor  has  notice  of  emancipation  by  will. 
387. 

OFFICE. 

slave  incapacitated  for  either  public  or  private,  297. 

PARENT  AND  CHILD. 

relation  among  slaves  not  wholly  recognized,  296. 

regulated  in  some  States,  296. 

power  over  children,  275. 
PARTUS  SEQUITUR  VENTREM,  70. 

common  law  rule,  71. 
PECULIUM,  258,  264,  265. 
PERMITS. 

defined,  118. 

limits  of  master's  right  to  grant,  118. 


LAW  OF  NEGRO   SLAVERY.  353 

POLICE. 

regulations  consequent  on  slavery,  113,  114. 

power  of  patrol,  115. 

homicide  of  slave  by,  96. 

assemblies  of  slaves,  115. 

interference  on  premises  of  master,  116. 
POLICY. 

of  Free  State,  not  violated  by  temporary  holding  of  slaves, 
145. 

how  far  this  extends,  146. 

when  rule  applies,  147. 

distinction  between  what  is  contrary  to  law  and  to  policy,  147. 

between  temporary  and  permanent  rights,  148. 

prohibitions  of,  extend  not  to  sojourner  from  necessity,  148. 
PRESCRIPTION.     (See  LIMITATIONS.) 
PROMISSORY  NOTES. 

to  slave,  void,  268. 
PROPERTY. 

acquisition  of,  by  slave,  258. 

villein,  259. 

law  of  other  countries,  260. 

when  found  by  slave,  261. 

peculium  the  property  of  master  on  death  of  slave,  264. 

extra  earnings  belong  to  master,  267. 

deposits  of,  267. 

but  not  property  purchased  with,  by  third  person,  267. 

RAPE. 

of  female  slave,  not  punishable,  107. 
REBELLION. 

what  is,  323. 
REGISTRY. 

omission  of,  under  statutes,  378. 

SALE  OF. 

when  void,  314,  and  see  TITLE. 
SET-OFF. 

not  allowed  for  necessaries  furnished  runaway,  121. 
SLAVE. 

defined,  1,  112. 

condition  under  pure  slavery,  86. 

under  ordinary,  86. 

partus  sequitur  ventrem,  70. 

domicile  of,  82. 

23 


354  INDEX. 

SLAVE,  Continued. 

personal  security  of,  83,  et  seq. 

master's  power  over  life  and  limb  restrained,  84. 

punishment  for  injuries  to,  are  statutory  only,  83,  93. 

how  considered,  under  Roman  law,  84  a. 

statutes  for  protection  of,  87. 

whether  express  mention  in  necessary,  88,  91,  94. 

crimes  against,  how  extenuated,  94,  323. 

when  justified,  97,  322. 

law  of  crimes  against,  compared  with  that  of  other  countries, 

108,110. 

police  regulations  of,  113,  114. 
homicide  of,  when  unlawful,  96,  325. 
quasi  right  to  personal  security,  98. 
right  to  resist  violence,  when,  98,  322. 
personal  injuries  to,  104. 
treated  as  ward  of  court,  104,  279. 
cruelty  to,  106. 
violation  of,  107. 

personal  liberty  presumes  freedom,  111, 
restraint  by  stranger  unlawful,  1 1 2  a. 
disobedience  of  stranger  lawful,  112  a. 
police  regulations  of,  113, 114. 
assemblies  of,  when  lawful,  1 15. 
license  to  travel,  118. 
liabilities  of  fugitive  slaves,  120. 
restrictions  on  removal  among  Saxons,  &c.,  246. 
none  in  America,  246. 
disqualified  as  witness,  247,  257. 
right  of  holding  property,  258. 
gains  divided  among  several  masters,  pro  rata,  258. 
law  of  other  countries,  260. 
property  found  by,  261. 
Roman  law,  where  slave  hired,  261. 
gifts  to,  262. 
cannot  inherit,  263. 
nor  make  a  will,  264. 
cannot  contract,  265. 
villeins  may,  266. 

agreement  between  master  and  slave,  when  void,  2G7. 
earnings,  beyond  wages,  belong  to  master,  267. 
master  may  recover  deposits,  267. 
but  not  purchased  by  bailee,  267. 
executed  and  executory  contracts  with,  2G8. 


LAW   OF  NEGRO   SLAVERY.  355 

SLAVE,  Continued. 

cannot  enforce  contract  made  with  third  person,  for  emancipa- 
tion, 268. 

marriage  of,  a  nullity,  270. 
laws  of  other  nations,  as  to  marriage  and  quasi  marriage,  271, 


of  Louisiana,  271. 

extenuation  of  crimes,  by  quasi  relation  of,  275. 

contracts  governed  by  law  of  domicile,  277. 

suits  for  freedom,  how  regulated,  and  effect  of,  278,  295. 

cannot  hold  office,  297. 

nor  be  executor,  or  guardian,  297. 

aliter,  as  to  villeins,  297. 

not  liable  to  duties  of  citizen,  298. 

bearing  arms  by,  298. 

cannot  be  agent,  except  of  master,  299. 

implied  agency  for  him,  299. 

prohibited  employments,  301. 

subordination  and  obedience,  324. 

rebellion  denned,  324. 

qualified  manumission,  334. 

remedy  for  provision  for,  335. 

sale  after  manumission,  341. 

election  of  freedom  by,  363. 
SLAVERY. 

defined,  1. 

by  Roman  law,  12,  84  a, 

pure,  1. 

ordinary,  1. 

original  right  of,  2. 

whether  contrary  to  law  of  nature,  3,  et  seq. 

ecclesiastics,  opinions  of,  13. 

of  negro  alone,  consistent  with  law  of  nature,  15. 

superiority  and  inferiority  of  race  a  ground  for,  15,  1C,  17,  24. 

advantage  to  negro,  18,  45,  46. 

adaptiveness  for,  44. 

historical  view  of,  37,  49,  150. 

Jewish  system,  51,  57. 

under  Christian  system,  58,  65. 

legal  origin,  66,  190. 

kidnapping  no  title,  66. 

conquest,  66. 

presumption  of,  67. 

as  to  whites  or  Indians,  67. 

origin  of  presumption,  69. 


356  INDEX. 

SLAVERY,  Continued. 

to  whom  it  extends,  69. 

of  statutory  origin  in  Georgia  only,  83. 

modified  in  America,  86. 

is  a  status  governed  by  law  of  domicile,  135. 

Story's  view  examined,  156,  et  seq. 

removal,  with  intent  to  remain,  142. 

by  sojourner,  or  traveller,  from  necessity,  143,  165. 

Lord  Mansfield's  doctrine  examined,  144. 

whether  policy  of  Free  State  violated  by  transit,  145. 

effect  of  air  on  status,  149. 

existed  in  France  and  England,  150. 

transit  through  free  State,  no  effect  on  status,  151,  153,  198,  n. 

Story's  opinion,  156,  et  seq. 

of  foreign  jurists,  156,167. 

foreign  courts,  168,  197. 

English  courts,  172, 197. 

effect  of  the  Union  on  the  question,  198,  215. 

error  in  the  basis  of  American  decisions,  216. 

remarks  on  Story,  J.,  judgment  in  Prigg  v.  The  Com'th,  217, 
218. 

decisions  of  American  courts,  on  effect  of  removal  to  free  State, 
216,  244. 

qualified  manumission,  334. 
SOMERSET'S  CASE. 

stated,  182, 183. 

examined  and  remarked  on,  184, 189. 
STATULIBERL 

definition  of,  74,  333. 

emancipation  avoided  by  creditors,  has  no  effect  on  children,  72. 

issue  of,  are  slaves,  when,  74,  75. 

when  removed  to  State  prohibiting  such  emancipation,  347. 

protected  by  statute  from  fraudulent  removal  or  sale,  390. 

importation  prohibited}  390. 
STATUTE. 

for  protection  of  slaves,  87. 

whether  slaves  must  be  expressly  mentioned,  88,  91,  94. 

construction  of,  defining  crimes,  321. 

necessary  to  exclude  law  of  stranger's  domicile,  226. 

ordinance  of  N.  W.  territory,  226. 

emancipation  act  of  Pennsylvania,  New  York,  &c.,  231. 

does  not  operate  on  person  in  transitu,  232. 

instruments  intended  to  evade,  344,  348. 


LAW  OF   NEGRO  SLAVERY.  357 

STATUS. 

defined,  163. 

cf  issue  dependent  on  that  of  mother  at  birth,  70,  71  a,  79. 

temporary  residence  of  mother  immaterial,  79. 

governed  by  law  of  domicile,  134,  140,  165. 

whether  slavery  is  an  exception,  156, 167. 

opinions  of  Story  and  other  jurists,  156,  167. 

existing  relations  imported  with  the  person,  138. 

removal  with  intent  to  remain  subjects  to  law  of  new  domicile, 
142. 

Lord  Mansfield's  doctrine  conflicts  with  law  of  comity,  144. 

mere  transit  has  no  effect,  151. 

effect  of  the  Union  on  question,  198,  et  seq. 

determines  invalidity  of  contracts,  277. 
STOWELL,  LORD. 

opinion  on  law  of  slavery,  190. 
SUITS  FOR  FREEDOM.     (See  ACTION.) 

TITLE. 

legal  origin  of,  in  slave,  66,  190. 

statutory  in  Georgia  only,  83. 

sale  of  slave  after  manumission,  341. 

by  executor  of  negro  manumitted  by  will,  confers  no  title,  357. 

under  execution  against  executor,  when  void,  359. 
TRESPASS.     (See  ACTION.) 
TRUSTS. 

master  may  recover  deposits  by  slave,  267. 

but  not  purchases  by  depositee  with  the  money,  267. 

evading  policy  against  manumission,  345. 

devisee  or  trustee,  when  he  takes  the  title  or  not  in  such  case, 
346. 

slave  cannot  enforce  trust  for  manumission  against  master,  368. 

VENDOR  AND  PURCHASER. 

notice  of  manumission  by  will,  357.     • 

WILL. 

legacies  to  slave,  262. 
slave  cannot  make,  264. 
contravening  policy  void,  344. 
directing  future  emancipation,  344. 
or  removal  for  that  purpose,  344. 
or  devising  to  them  when  emancipated,  344. 
bequest  of  life  estate  with  illegal  remainder,  346. 
24 


358  INDEX. 

WILL,  Continued. 

operating  on  slaves  in  another  jurisdiction,  348. 

emancipation  by,  where  prohibited,  353. 

formalities  of,  required,  354. 

not  aided  by  reference  in  another  instrument,  354. 

assent  of  executor  to  manumission  by,  354. 

revocation  by  sale  or  gift,  355. 

construction  of,  355,  356. 

manumission  by  an  insolvent,  357. 

by  one  supposing  himself  owner,  358. 

slaves  illegally  manumitted  by,  fall  into  residue,  362. 

where  condition  of  emancipation  prohibited  by  foreign  law,  of 
place  of  performance,  364. 

collusion  or  delay  of  executor  will  not  avoid,  365. 

remedy  where  executor  refuses  to  deliver  to  legatee  for  manu- 
mission, 366. 


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